Mr White and his partner Ms Todd were employed by a large estate in Surrey to carry out housekeeping, security and general maintenance duties at the house and estate. They were provided with accommodation. The estate entered into one single agreement with both Mr White and Ms Todd who were described as"the Caretaker/Manager" and the"Caretaker" respectively.

The owners of the estate rarely visited it accordingly Mr White and Ms Todd were left very much unsupervised.

A question arose before the Employment Tribunal as to whether or not Mr White and Ms Todd were really employees. The discussion focused on the control test. By the control test the Employment Tribunal seeks to establish the extent to which an individual who carries out their work is under the"control" of the person engaging them on that work. Where someone is controlled they would tend to be regarded as an employee. Where that person has control themselves over how they carry out the work they are more likely to be self employed.

The Employment Appeal Tribunal confirmed that in determining whether somebody is an employee, regard has to be had to all the circumstances not just the extent to which the employer exercises control. However, it also confirmed that the fact that the employer does not control the individual on a day to day basis does not prevent that individual being an employee if the employer retains contractual right to exercise control.

The key points arising from this case therefore are that regard must be had to all the circumstances but, the correct question to ask is whether or not there was a right to exercise control even if control was not in fact exercised.



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