[Thanks to James English of Samuel Phillips solicitors for preparing this case summary]
Does an employer have to exercise actual day-to-day control over an employee for there to be an employment relationship?
No, says the EAT, in White & Todd v Troutbeck SA, as the contractual right to control is sufficient.
The Claimants were caretakers/managers of a small estate in Surrey on behalf of the 'absentee owners', who visited once or twice a year. They were engaged under an agreement that set out various duties and responsibilities for the farm and grounds. There were no fixed hours, but several references in the agreement to 'employment.'
Overturning the employment tribunal's decision that the pair were not employees, HHJ Richardson held that the fact that the owners had divested themselves of day-to-day control was not conclusive. The test from Ready Mix Concrete remains the 'classic description of a contract of employment'. It is a multi-factorial test, rather than a control test. The key question is whether there is a contractual right of control. All aspects of control are relevant, and many employees decide how their work is done. The starting point is the express terms of the contract and (unlike Autoclenz v Belcher), no party had argued that the agreement did not reflect the true relationship.