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Thanks to Sarah Fitzpatrick of Collingwood Legal for preparing this case summary

Did an employment tribunal make an error in law when it determined that a low level of control exercised over workers precluded their being an employment relationship?

Yes, said the Court of Appeal in Troutbeck SA v White and Todd.

The parties had entered into an agreement to record their relationship which referred to "this employment agreement" and had various references to being "employed".  The agreement was terminated and a claim for unfair dismissal pursued. 

The Court of Appeal held that the tribunal had wrongly treated the low level of actual day-to-day control by Troutbeck over the activities of the individuals as precluding an employment relationship when, viewed in the round, the relationship between the parties recorded in the agreement in the setting of the surrounding circumstances presented the principal elements of employment.  Additionally, there was a sufficient degree of control over the individuals to preclude them being independent contractors.

The Court of Appeal noted that both parties signed a document referring to "this employment agreement" and that was an expression of their intentions confirming the objective analysis of the legal position.