126 8: Contract of employment Part C Employment law
Cassidy v Ministry of Health 1951
The facts: The full-time assistant medical officer at a hospital carried out a surgical operation in a negligent
fashion. The patient sued the Ministry of Health as employer. The Ministry resisted the claim arguing that
it had no control over the doctor in his medical work.
Decision: In such circumstances the proper test was whether the employer appointed the employee,
selected him for his task and so integrated him into the organisation. If the patient had chosen the doctor
the Ministry would not have been liable as employer. But here the Ministry (the hospital management)
made the choice and so it was liable.The control and integration tests are important, but no longer decisive in determining whether a person is
an employee.1.3 The multiple (economic reality) test
Courts also consider whether the employee was working on their own account and require numerous
factors to be taken into account.Ready Mixed Concrete (South East) v Ministry of Pensions & National Insurance 1968
The facts: The driver of a special vehicle worked for one company only in the delivery of liquid concrete to
building sites. He provided his own vehicle (obtained on hire purchase from the company) and was
responsible for its maintenance and repair. He was free to provide a substitute driver. The vehicle was
painted in the company's colours and the driver wore its uniform. He was paid gross amounts (no tax etc
deducted) on the basis of mileage and quantity delivered as a self-employed contractor. The Ministry of
Pensions claimed that he was in fact an employee for whom the company should make the employer's
insurance contributions.
Decision: In such cases the most important test is whether the worker is working on his own account. On
these facts the driver was a self-employed transport contractor and not an employee.In the above case, the Judge held that a contract of service existed where:
There is agreement from the worker that they will provide work for their master in exchange for
remuneration.
The worker agrees either expressly or impliedly that their master can exercise control over their
performance.
There are other factors included in the contract that make it consistent with a contract of service.The fact that the drivers could appoint a replacement for themselves was a major factor in the decision
that found them as contractors rather than employees.1.4 Agency workers
The status of agency workers has been the subject of numerous cases in recent years as the numbers
employed under such contracts have increased. Two key cases have considered length of service of
agency workers and control that the client of the agency has over the worker.
(a) Length of service
In Franks v Reuters Ltd 2003, the agency worker had been providing services to the client for some
six years engaged in a variety of jobs, and was effectively so thoroughly integrated with the
employer's organisation as to be indistinguishable from the employer's staff.
The case was remitted to the tribunal for further consideration, but the length of an assignment of
an agency worker clearly has implications for the development of other indications of an
employment relationship, with those utilising the services of the worker forgetting the true nature
of the relationship and behaving towards the work as if they were an employee. It may be that at
this point the relevant approach also starts to involve the 'integration' test'.