![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201505.jpg)
Degree of control
[ch 2: pages 35-36]Mutuality of obligation and an obligation to carry out work personally are core requirements of both “employee” and “worker” status. The deciding factor when working out whether someone is an employee or a worker is the degree of control exercised over how and when tasks are performed. In an employment relationship, an employer is likely to have the right to control, for example, working hours and the timing of holidays, and to supervise and direct the way tasks are carried out, to discipline workers and to limit their freedom to work for others. Each case is a question of looking at the context, because each employment situation is different.
“Control” does not 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 (White and Todd v Troutbeck S.A. [2013] UKEAT 0177/12/2301). Here is a an interesting recent example:
The EAT ruled that a plumbing operative working for Pimlico Plumbers Limited (PPL) was a worker – not self-employed. The EAT found that PPL “choreographed” its contract documentation to represent its workforce as self-employed, while at the same time holding out to customers that they were direct employees. PPL contract terms were non-negotiable. Operatives were required to take all the financial risk of each transaction, only getting paid when the customer paid PPL; they were required to take on contractual responsibility for the quality of the work and to take out insurance to cover the risk of claims; they had to fund the purchase of equipment and materials, were VAT and CIS registered and paid their own tax and national insurance.
At the same time operatives were tightly regulated. Their hours of work were controlled and PPL made extensive use of GPS tracking; they were required to wear a company uniform with logo and could use only branded vehicles and company mobile phones, all charged for through deductions from “wages”; operatives were banned from giving out their own mobile number or working privately for prospective PPL customers and the sanction was immediate “dismissal” for any operative caught breaking rules, especially the ban on private work. There was an “unwritten rule” that anyone refusing work would be “parked up” meaning that no work would be allocated for a period of time. Operatives were not allowed to send a substitute. The EAT ruled that the claimant was fully integrated into PPL’s organisation in a subordinate and dependent position and was a worker entitled to the National Minimum Wage and holiday pay.
(1) Pimlico Plumbers Limited and (2) Charlie Mullins v Smith [2014] UKEAT/0495/12/DM