MAIN CAMPUS

NAME: LUBWO RAY DAVID

COURSE UNIT: LABOR LAW

REG NO: BKS17B11/367

STREAM: A

LECTURER:

Question.

The Common law in determining who is an employee still places considerable emphasis on the
concept of control. Critically analyze the above statement.
An employee is any person with capacity for a valuable consideration engaging in the service of
another to observe his directions in a lawful business. 1 The Contract of service may be oral or in
writing, express or implied in return for remuneration to work for the employer 2 as Common law
expresses concerns in establishing the principle of vicarious liability imposing liability on the
employer for actions committed by his employee during the course of employment. This was
discussed in the case of Mwonge v A.G3 that an act may be done in the course of the servant’s
employment nevertheless if what he did is merely as a manner of carrying out what he was
employed, this places liability onto his master.

To a greater extent, Common law in determining who is an employee still places

considerable emphasis on the concept of control as follows;

Control distinguishes an employee from an independent contractor as emphasis is sighted

whether the employer has sufficient control over the manner of work to be done. 4 This was
discussed by Lord Judge Bram well in his dictum in the case of Yewens v Noakes5 where he
clearly stated, “A servant is a person who was subject to the command of his master as the
manner in which he shall do his work.” It should be noted new changes have developed
discrediting the dictum by Lord Judge Bram well as expressed by Lord Cooke in the case of
Marketing Investigation v Ministry of Social Security6 as he clearly states, “Control will no
doubt always have to be considered although it can no longer be regarded as the sole factor,”
thus placing considerable emphasis on the concept of control.

Master’s right to direct the employee is depicted as impunity because their power intimidates
their ability to work freely7 as examined by Common law placing considerable emphasis on the
concept of control. This is clearly expressed by Justice Ormerod in his dictum in the case of

1
Businessday.ng/legal-business/article/vicarious Accessed on 15th November 2020
2
Section 2 of Employment Act, 2006
3
[1967] EA 17
4
Lawtimesjournal.in/vicarious-liability-2/%3Famp&ved= Accessed on 14th November 2020
5
[1880] 6 530
6
[1969] 2 QB 173
7
www.newvision.co.ug/news/1197776/deal-oppression-boss-by-Fred-Ouma Accessed on 15th
November 2020
Gould v Minister of National Insurance & Another 8 where he stated an employer having power
to select an employee purports the right to control the method of doing work regardless to
suspension, dismissal or disciplinary proceedings. However, this was later debated by Lord
Parker in his dictum in the case of Morren v Swinton9 sighting, “Control can’t be a decisive test
when dealing with a professional man as to matters regarding how to do his work,” thus placing
considerable emphasis on the concept of control.

Furthermore, control need not be done directly applying in situations that lack clarity as whether
a person is an employee or self-employed illustrated in a system of formal inequality structured
to authorize master’s exclusive privileges over the employee 10. This was discussed by Justice
Lindsay P in the case of Motorola Ltd v Davidson Melville Craig Group Ltd 11 clearly stating,
“The level of control even though exercised by third party is sufficient to establish an
employment relationship between employer and employee.” This was later debated in the case of
Performing Right Society Ltd v Mitchell and Booker Ltd 12 where court expressed concerns of
the literal meaning of word ‘services’, it mentions ‘salary’, it uses the word ‘employ’
establishing right to immediate dismissal for breach of any reasonable instructions and detailed
control on every point, thus placing considerable emphasis on the concept of control.

However, to a smaller extent Common law in determining who is an employee doesn’t

place considerable emphasis on the concept of control as follows;

Integration test examines work done as part of an integral business. 13 This was adopted by Lord
Denning in the famous case of Cassidy v Ministry of Health14 clearly stating, “Under contract of
service, a man is employed as part of the business and his work is done as an integral part of the
business whereas under contract for service, his work although done for business is one not

8
[1951] 1 All ER 368
9
[1965] 1 WLR 582
10
Lea Vandervelde, ‘Servitude and Captivity in the Common law of Master-Servant at p4
<scholarship.law.wm.edu/wmborj/vol27/iss4/5/ Accessed on 15th November 2020
11
[2001] IRIR 4
12
[1924] 1 KB 762
13
David Cabrelli, Pearson, “Employment law 5th Edition” at p25
14
[1951] 2 KB 553
integrated into it but only accessory to the business.” As a matter of fact, the test was also used
by Lord Denning in the case of Stevenson Jordan & Harris v MacDonald15 but difficult to apply
examining the work of an employee as integral to the business thus doesn’t place considerable
emphasis on the concept of control.

Further, the Economic Reality Test also examines the provisions of the contract being consistent
with a contract of service. This was discussed by Justice McKenna in the case of Ready Mixed
Concrete v Minister of Pensions & National Insurance 16 where he expressed concerns on the
servant agreement to provide his work in consideration of the wage or remuneration. However,
this agreement need be either expressly or impliedly to the subject to the other’s control to a
sufficient degree to make the other master governed by the provisions of the contract consistent
with it being a contract of service. 17 As a matter of fact, the House of Lords strengthened this test
in conjunction with the business test as discussed in the case of Carmichael v National Power
PLC18 in which it was discussed that before finding employee status, there must be sufficient
control purporting to contractual obligation thus doesn’t place considerable emphasis on the
concept of control.

To sum up my endorsed research, I affirm to the above statement that Common law still places
much emphasis on the concept of control to examine who an employee is although new
developments in law discredit the assumption of bureaucracy in such metaphors.

REFERENCES

 Mwonge v A.G [1967] EA 17

15
[1951] TLR 101
16
[1968] 2 QB 497
17
www.researchgate.net/publication/34352091_By_Datius_Didace Accessed on 15th November
2020
18
[1991] ICR 1226
 Yewens v Noakes [1880] 6 530
 Marketing Investigation v Ministry of Social Security [1969] 2 QB 173
 Gould v Minister of National Insurance & Another [1951] 1 All ER 368
 Morren v Swinton[1965] 1 WLR 582
 Motorola Ltd v Davidson Melville Craig Group Ltd [2001] IRIR 4
 Performing Right Society Ltd v Mitchell and Booker Ltd [1924] 1 KB 762
 Cassidy v Ministry of Health [1951] 2 KB 553
 Stevenson Jordan & Harris v MacDonald [1951] TLR 101
 Ready Mixed Concrete v Minister of Pensions & National Insurance [1968] 2 QB 497
 Carmichael v National Power PLC [1991] ICR 226
 Section 2 of Employment Act, 2006
 David Cabrelli, Pearson, “Employment law 5th Edition” at p25
 Lawtimesjournal.in/vicarious-liability-2/%3Famp&ved= Accessed on 14th November 2020
 Lea Vandervelde, ‘Servitude and Captivity in the Common law of Master-Servant at p4
<scholarship.law.wm.edu/wmborj/vol27/iss4/5/ Accessed on 15th November 2020
 Businessday.ng/legal-business/article/vicarious Accessed on 15th November 2020
 www.newvision.co.ug/news/1197776/deal-oppression-boss-by-Fred-Ouma Accessed on 15th
November 2020
 www.researchgate.net/publication/34352091_By_Datius_Didace Accessed on 15th
November 2020