Where the right to control how the work is done is present it
can be a strong pointer towards employment. However, control over
how a job is done can only be exercised where there is scope for
it.
Many employees are professionals or skilled worked workers
where control over how they work is not really appropriate and they
do not work under the direct supervision of their employer.
Examples of such jobs cited by the courts include the master of a
ship, an engine driver, a head chef and a consulting engineer.
In the case of Morren v Swinton and Pendlebury Borough
Council (see ESM7025), relating to a civil engineer who worked for
the Borough Council, it was said
'Clearly superintendence and control cannot be the decisive
test when one is dealing with a professional man or a 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 work; therefore the absence of control and direction in
that sense can be of little, if any, use as a test.'
This applies also to workers who do not have professional
qualifications, for example, a skilled carpenter or plasterer will
not need to be told how to do his job. It is reinforced in the
casual worker field by the case of Lee Ting Sang v Chung Chi- Keung
(see ESM7140) where the judgement of the Privy Council (finding Lee
Ting Sang to have been an employee) included the following remarks:
'It is true that he was not supervised in his work, but this
is not surprising, he was a skilled man and had been told the beams
upon which he was to work and the depth to which they were to be
cut and his work was measured to see that he achieved that result.
There was no question of his being called upon to exercise any
skill or judgement as to which beams required chipping or as to the
depths that they were to be cut. He was simply told what to do and
left to get on with it as, for example, would a skilled turner on a
lathe who was required to cut a piece of metal to certain
dimensions.'
