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.
A self employed individual may agree to perform a particular task at a specific time and place, but it is unlikely that he 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 his hours to suit the task and his 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.
EXAMPLE OF A GOOD CONTROL CLAUSE
The Client shall have no right to, nor shall seek to, exercise any direction, control, or supervision over the Supplier in the provision of the services. The Supplier shall endeavor to co-operate with the Client’s reasonable requests within the scope of the services, however it is acknowledged that the Supplier shall have autonomy over their working methods.
The Supplier may at any time and without giving the client prior notification, make any changes to the specified service which are necessary to comply with any applicable safety or other statutory requirements, or make any changes to the specified service which do not materially affect the nature or quality of the specified service.
The services shall be provided at such locations, and during such hours, as the Supplier deems appropriate for the satisfactory provision of the services.
If a contract remains silent on the issue of control, this is would not cause the contract to fail outright, however closer attention should be paid to other key issues. Contracts that contain any combination of the following are likely to fail assessments:
- The client is given control over the working methods.
- The contractor is required to follow client instructions and direction in the same way an employee would.
- The contract must be carried out a times and locations as directed by the client (although some contractors will have mitigating circumstances making this aspect of control less problematic).
- The contract specifies that the contractor will have a ‘line manager’