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Employment Status – Degree of Control

White & Todd v Troutbeck

In the case of White & Todd v Troutbeck, the Employment Appeal Tribunal (“EAT”) considered whether two caretakers/managers of a house and small farm estate in Surrey were not “employees” but mere “workers” in circumstances where the Nigerian owners of the estate did not exert day to day control over them.

This question was important, as the individuals could only bring unfair dismissal claims when their agreements were terminated, if they were considered to be “employees”.

In establishing whether someone is a “worker” or “employee” the test is broken down into the following three parts:

• An agreement exists to provide the person’s own work or skill in the performance of service for the another in return for a wage or remuneration;

• There is control of the individual (servant) by the Employer (master); and

• There are other provisions in the agreement which are consistent with a contract of service or employment relationship.

In this case, the two individuals were rarely visited or “controlled” by the owner of the estate, they were not required to work fixed hours, though the agreements under which they performed their work did make several references to the word ‘employment’.

The estate owner argued he did not have sufficient control over the individuals for them to be considered “employees”, and the Tribunal agreed.

On appeal however, the EAT decided that the ‘control’ part of the test was not in itself conclusive, and that the Tribunal should have considered the entire employment relationship, including the written agreement. Also, it was clear from the agreements that the estate owner had made clear that they wished to retain the right to give instructions to the individuals if they wanted to, through reporting requirements for example.

The key question therefore was did the estate owners retain the right to control the individuals, as opposed to whether the individuals were subject to day-to-day control in practice from the owners.

In light of this decision, it is advisable for employers to ensure that the written agreements they have with any self-employed contractors or workers are clearly drafted and reflect the realities of the situation in practice, so as to avoid any dispute about the status of such individuals.

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