The degree of control exercised by the client over the services to be completed, as well as how, when, and where the individual does the work is highly important.
It is essential to demonstrate that the client has engaged the services of the contractor to provide a specialist service and that you have autonomy over the way the services are provided. To use an analogy that is often used; should you need the services of a plumber, you will contact the plumber, show the plumber what needs to be fixed, then the plumber is left to carry out the services using their own working methods. This is how the relationship between the contractor and the end client should be.
A self-employed individual may agree to perform a particular task at a specific time and place, but it is unlikely that they will be subject to any right of control by the client. An employee on the other hand, is likely to be told where and when the tasks should be undertaken. This is shown in the case of Morren v Swinton and Pendlebury Borough Council (1965).
This being said, for control to be relevant, it must be much more than merely monitoring or checking work. Unless a contractor is “tied hand and foot” to the client, then the detrimental level of control is not present [Chaplin v Australian Mutual Provident].
Control over what the contractor does will be clear, as he will be constantly advised by a manager or supervisor as to the work to be done. Where a client can move the contractor from job to job due to the changing priorities, there will be a right of control over what is to be done – this is a strong indicator of employment. [Stagecraft Ltd v Minister of National Insurance (1965)]
Control over where the contractor does the work may be in the contract. A contract of service will usually provide the client with the right to require a contractor to work at a specific place. Where the tasks are to be undertaken at the client’s premises and the work to be integrated into the client’s premises, there is likely to be control. It is acknowledged, however, that certain services can, in reality, only be carried out at the client’s premises therefore this factor may be neutral.
Control over when the contractor does the work is obvious; an employee would be required to work set hours. A self-employed contractor would be expected to arrange their hours to suit the task and their own convenience.
Control over how the tasks are completed can be difficult. In the case of Morren v Swinton Borough Council, it was said:
“Clearly superintendence and control cannot be the decisive test when one is dealing with a professional man or man of some particular skill and experience. Instances of that have been given in the form of a master of a ship, an engine driver or a professional architect or, as in this case, a consulting engineer. In such cases, there can be no question of the employer telling him how to do the work, therefore the absence of control and direction in that sense can be of little, if any, use as a test.”
However, in reality, contractors with specialist skills and expertise will be likely to work with clients who have their own knowledge of these specialist areas. As such it is important that contractors retain a reasonable degree of autonomy over their working methods.
It should be remembered that the control need not be exercised directly, but that it can be delegated as was the case in Global Planet v The Secretary of State for Social Security.
See the Resources section for example clauses for this test.