ESM0524 - Guide to determining status: control over when the work is done

The right of an engager to exert control over a worker is a strong pointer towards employment. One element of that control is the right to control when the worker carries out the work.

Most employees are required to work hours prescribed by their employer. Details of these hours and when they will be worked will normally be set out in the contract of employment or other documentation. The documents may also indicate flexitime and time off etc arrangements

There will be occasions when an employer exerts little control over when the employee carries out his or her duties. For example, skilled or senior employees may be left unsupervised to complete projects or duties as they see fit. Additionally, the lack of a requirement to work specific hours usually has only marginal importance. This was the case in Robin Hamilton v The Secretary of State for Social Services (an unreported decision) when skilled production workers who were not required to work specified hours were found to be employees. In his judgement Hodgson J said

‘So far as control is concerned, it does not seem to me that the mere fact that the men, being paid by the hour, were not required to work any specific number of hours per day or that they could take a rest when they wanted to is of more than marginal importance as a pointer towards the arrangements being contract for services.’

Usually, self-employed workers are not subject to extensive control over when the work is carried out. There may be an agreed deadline by which the specific work, or stages in the work, should be completed. However, within this deadline, the worker will usually have freedom to do the work at times to suit himself or herself. On the other hand, workers engaged under contracts for service may be subject to considerable restrictions where commercial pressures dictate. For example, if working on large sites where access is limited to normal working hours, the worker is not going to be able to work as and when he or she pleases. In such circumstances the limitations put on when the work can be carried out tells us nothing about the status of the individual and other factors will have to be considered.

Part-time, casual, temporary and short-term workers may control when they work to a greater extent than full-time workers do. In Market Investigations the employer had

'..... no right to instruct Mrs Irving as to when she should do the work. The only requirement imposed on her was that the work should be completed within a specified period.'

[Market Investigations Ltd v The Minister of Social Security (see ESM7040).]

Nevertheless the judge held that the control exercised by the company in other ways was quite sufficient to establish a contract of employment. The judge said that

'..... the fact that Mrs Irving had a limited discretion as to when she should do the work was not in my view inconsistent with the existence of a contract of service.'

In general, the more an engager can control when work is done the stronger the indication that there is an employment. However, you need to treat this factor with caution and look at the overall picture before reaching any conclusions.

See example ESM0525