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Degree of control
Mutuality of obligation and an obligation to carry out work personally are core requirements of both “employee” and “worker” status. The deciding factor as to whether someone is an employee is likely to be the degree of control exercised over them. In an employment relationship, an employer is likely to regulate, for example, working hours and the timing of holidays, and to supervise and direct the way tasks are carried out, to subject the individual to disciplinary and grievance procedures and to limit the individual’s ability to work for others. Each case is a question of fact and degree, as each employment situation is different.
“Control” does not necessarily mean practical day-to-day control. What matters is that the employer has the contractual right to control the employee, whether or not it is exercised:
The claimants were caretaker managers of a small Surrey estate for absentee owners who visited once or twice a year. Under the contract, they owed various duties in relation to the farm and surrounding land. There were no fixed hours but the word “employment” was used in several places in the contract. The EAT confirmed that the starting point is always the express wording of the contract but that the fact that the owners did not exercise day-to-day control did not stop the relationship being one of employment. What matters is whether there is a right of control.
White and Todd v Troutbeck S.A. [2013] UKEAT 0177/12/2301
The final requirement for an employment contract is that the rest of the contract (written or oral) should be consistent with an employment contract. An express written term in the contract describing the relationship as one of employment or self-employment will be a strong factor, but it will be by no means conclusive (see Autoclenz v Belcher above).