ESM0529 | Guide to determining status: control exercisable by various means

The degree of control an engager can exercise over the performance of a task may be set out in detail in a contract. Alternatively the contract may only contain the broad outline or clauses, allowing the engager to give directions as the work is performed. If the right of control is not clearly stated, it may be possible to imply such a right into the contract (for example, the worker may be part of a team or gang which is under the control of a manager).

The Supreme Court in PGMOL found it is not necessary for an engager to have a contractual right to retain control over, or intervene in, every aspect of the performance of all aspects of an engagement for a sufficient framework of control to be present. An employers right of intervention can be implied rather than an express term in the contract

The Supreme Court in PGMOL found that the combination of contractual obligations imposed on referees as to their general conduct, such as the Code of Conduct, and their behaviour during a game, such as the merit table, matchday procedures, and assessment systems, gave PGMOL a sufficient framework of control.

Where it is not practical or appropriate for an engager to step in during the performance of a service it does not negate the existence of a sufficient right of engager control. The Supreme Court in PGMOL found that control can be exercised by both positive and negative means. The consequential sanctions for actions which are known to workers prior to carrying out an engagement could influence the behaviour of those workers both before, during and after an engagement

The fact that control is imposed by an engager or statute because of the regulatory environment for the work does not diminish the relevance of that control.

The fact that regulatory controls apply to all workers (employed and self-employed) does not mean that they should be ignored when considering control. [Christa Ackroyd Media Limited v The Commissioners for Her Majesty’s Revenue and Customs [2019] UKUT 326 (TCC) at para. 59 and Uber BV v Aslam [2021] UKSC 5 at para. 102.]

In the case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2QB 497, Mr Justice MacKenna said at p.516 in relation to the right of control:

"To find where the right resides one must look first to the express terms of the contract, and if they deal fully with the matter one may look no further. If the contract does not expressly provide which party shall have the right, the question must be answered in the ordinary way by implication."

In the later case of Narich Pty Ltd v The Commissioner of Pay-roll Tax [1984] ICR286, counsel for Narich argued that the greater the detail in which the way the person engaged to do his work is prescribed by the contract, the less scope there is for direction and control during and in the course of performance of the work. The Privy Council rejected this argument saying:

"In their Lordships' view this argument has a paradoxical quality about it. It matters not by what means the engager is contractually entitled to direct and control the way the worker does the work. What matters is that, by one means or another, the engager is, as a matter of law arising from the terms of the contract concerned, entitled to do so."