ESM4325 | Particular occupations: subcontractors in the construction industry - status - short-term engagements

Similar considerations to those which apply for long-term engagements (see ESM4324), will apply for short-term engagements. There will inevitably be differences in terms and conditions (for example, it is unlikely that there will be holiday pay, sick pay, guarantee of continuing work, etc. which may apply to the long-term worker). This may make it less likely that a short-term engagement will be an employment.

An argument may be put forward that ‘casual’ or ’short-term’ workers will always be self-employed, but that is not correct. Case law includes examples of construction industry workers engaged on short-term contracts who have been found to be employed. In Lee Ting Sang v Chung Chi-Keung (see ESM7140), a stone mason was held to be an employee even though he only worked for the engager involved on an occasional basis. It is, however, clear in that case that the engager’s work was given priority by the worker, who would leave other work if the engager wanted his services on a particular day.

In Lane v Shire Roofing (ESM7165), a roofing worker engaged on a short-term contract with a roofing firm to repair a porch on a private house was held to be an employee - despite the fact that some equipment was supplied by the worker. The Court considered `whose business’ it was in relation to the porch job and concluded it was the roofing firm’s - not the worker’s.

Looking at the extremes, a student engaged for a few weeks during the summer vacation as a general labourer is likely to be an employee. Likewise, a general labourer who is subject to detailed control over what, where, when, and how the work is to be carried out is again likely to be an employee.

Where the following apply the engagement is likely to be one of self-employment:

• substantial equipment supplied by the worker (for example, digger driver supplying own digger), or

• genuine financial risk exists for the worker (for example, where a worker is paid to undertake and complete a specific task and is responsible for correcting defective work at his own cost or where significant amounts of material have to be supplied by the worker at his own expense), or

• there is a mutual intention that the engagement is under a contract for services and it involves a skilled worker taken on to perform a specific task and paid for completing that task and who can demonstrate either

• a clear existing business in a related field (see ESM0550) (for example, where a plumber normally works direct for the public at large but undertakes a two-day plumbing engagement for a builder with the builder supplying the materials, the engagement may be considered an incident of his overall business activities), or

• a pattern of working for a number of different engagers under a succession of short-term contracts coupled with a clear `business-like approach’ to obtaining and organising engagements with related expenditure of a type not normally associated with employment (see ESM0551).

Different considerations would apply in the case of an unskilled worker paid by the hour and directed by the engager as to what work should be done at any particular time. In these circumstances, the overall picture would be more akin to casual employment.