ESM0516 - Guide to determining status: control - overview

In the 1950s the courts took the view that the distinction between employment and self-employment turned on who controlled the worker when carrying out his or her duties. If the engager had the right of control then there was employment. Since then, this view has developed and the control test is now considered to be less significant in determining status. Although the right of control is a significant factor in establishing whether someone is self-employed or employed, that right is no longer held to be conclusive on its own. It has to be considered in the light of all the other factors relevant to employment status (see ESM0515).

What we are concerned with is the right to control what the worker has to do, where it has to be done, when it has to be done and how it has to be done. It is the right to exert control that is significant; not whether that right is exercised (see ESM0518). In practice, the employer may rarely (or never) exercise this right; particularly where the worker is a skilled individual used to working on his or her own initiative (see ESM0527). It can be difficult to demonstrate both that a right exists and that there is actual control. The engager may not be able to exercise control over all aspects of the work. If so, this does not necessarily mean that there cannot be employment although the greater the level of control there is, the stronger the pointer towards employment. You must also bear in mind that the right of control is only one factor to take into account and must be considered in context. The right of an engager to exert control over a worker is a strong pointer towards employment.

When investigating the status of a worker you need to establish whether the engager has the right to control the worker. The fact that the right exists carries a lot of weight even where little control is exercised. For example, a manager may not closely supervise the work of an experienced or skilled worker, although the right exists.

Where there is evidence of little control this does not mean conclusively that there is self-employment. However, where the engager has no right of control whatsoever over the worker, there will not be a contract of service (see the case of Ready Mixed Concrete at ESM7030). In general, the more control that exists the more likely it is that the relationship between the engager and the worker is that of employment.

It is important to consider the level of control in the light of the overall picture presented by all relevant factors.