Part C Employment law 8: Contract of employment 127
(b) Control over the worker
Where the client of the agency has sufficient control over the employee provided by the agency, it
could be held that they are in fact the true employer.Motorola v Davidson and Melville Craig 2001
The facts: Davidson was contracted with the Melville Craig agency and was assigned to work for
Motorola. Both the agency and Motorola had agreed that Davidson could be sent back to the
agency if his work was unacceptable. Following a disciplinary hearing Davidson was found
unacceptable and returned to the agency. Davidson took Motorola to an employment tribunal for
unfair dismissal.
Decision: Motorola had sufficient control over Davidson to make them the employer. It was held
that the court should look beyond the pure legal situation and look at the practical control aspects
in such cases as well.1.5 Relevant factors
Significant factors that you should consider when deciding whether or not a person is employed or self-
employed are as follows.
Does the employee use their own tools and equipment or does the employer provide them?
Does the alleged employer have the power to select or appoint its employees, and may it dismiss
them?
Payment of salary is a fair indication of there being a contract of employment.
Working for a number of different people is not necessarily a sign of self-employment. A number
of assignments may be construed as 'a series of employments'.
In difficult cases, courts will consider whether the employee can delegate all their obligations, whether
there is restriction as to place of work, whether there is a mutual obligation and whether holidays and
hours of work are agreed.
O'Kelly v Trusthouse Forte Plc 1983
The facts: The employee was a 'regular casual' working when required as a waiter. There was an
understanding that he would accept work when offered and that the employer would give him preference
over other casual employees. The employment tribunal held that there was no contract of employment
because the employer had no obligation to provide work and the employee had no obligation to accept
work when offered.
Decision: The Court of Appeal agreed with this finding. Whether there is a contract of employment is a
question of law but it depends entirely on the facts of each case; here there was no 'mutuality of
obligations' and hence no contract.
The decision whether to classify an individual as an employee or not is also influenced by policy
considerations. For example, an employment tribunal might regard a person as an employee for the
purpose of unfair dismissal despite the fact that the tax authorities treated them as self-employed.
Airfix Footwear Ltd v Cope 1978
The facts: The case concerned a classic outworking arrangement under which the applicant (having been
given training and thereafter supplied with the necessary tools and materials) generally worked five days a
week making heels for shoes manufactured by the respondent company. She was paid on a piece work
basis without deduction of income tax or NIC.
Decision: Working for some seven years, generally for five days a week, resulted in the arrangement being
properly classified as employment under a contract of employment.