The employer’s right 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, as opposed to a worker, is likely to be the degree of control the employer is entitled to exercise over them. In an employment relationship, the employer is likely to control, 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 their right to work for others. The more control an employer is entitled to exercise over the way someone completes assigned tasks, the more likely that individual is to be an employee.

“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. For example, in White and Todd v Troutbeck S.A. [2013] UKEAT 0177/12/2301, caretaker managers looking after a farm for absentee landlords were left to manage themselves, with very occasional visits from the owner. The EAT confirmed that the absence of day-to-day control would not stop the managers being employees. What mattered was whether there was a legal right of control.