EMPLOYMENT LAW

 

 

“CONTRACT OF SERVICE”

The Test

 

 

 

 

 

ABDUL  AZIZ HUSSIN AMN

DPA; LL.B ( Hons ); Dip. M. Mgmt.; M.Sc ( Prjt. Mgmt. );

AMIM; Advocate & Solicitor; MMAP

 

 

 

 

Ready Mixed Concrete, Case (1968) 1 All E.R 433 ( "control" test ) and Market Investigations v Minister of Social Security (1969) 2 QB 173 (“multi-factoral” test):

 

 

"MULTI-FACTORAL" TEST

 

Market Investigations’ case

 

"the most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determinating factor, and that factors which may be of importance are such matters as:

 

-    whether the man performing the services provides his own equipment;

-     

-    whether he hires his own helpers;

-     

-    what degree of financial risk he takes;

-     

-    what degree of responsibility for investment and management he has;

-     

-    whether and how far he has an opportunity of profiting from sound management in the performance of his task.

 

 

 

 

 

"Multi factoral” test also includes:-

 

-        the method of payment (payment on a commission basis is indicative of self-employment);

 

-        the payment of sickness and holiday pay (which indicates the existence of contract of service)

 

 

"CONTROL" TEST

 

Ready Mixed Concrete (S.E,.) Ltd. v Minister of Pensions and National Insurance (1968) 1 All E.R. 433).

 

 

If involves a number of elements each of which must be satisfield before we can conclude that the parties have made a contract of employment:

 

(a)        if is a contract,

 

(b)        In which the workmen agrees to provide his own person of  service and skill,

 

(c)        In the peformance of work for the employer,

 

(d)               And the employer has the right to control the manner in which the work is done, and

 

(e)        All this return for remuneration to be paid by the employer.