In determining when employment relationship exists, the Courts have developed three tests which are as follows:

1.The Control Test

This is the longest established basic test of when an employment relationship exists. The basic proposition is straight forward i.e. the more “A” exercises control over person “B’s” work the more likely “A” is to be employer and “B” the employee. The control test has also been referred to as “what to do and how to do it test”.
If one can direct another not only on what job to do but also how to do it and where when and with who, he has such control that the law presumes him to be an employer. But if “A” can only direct what is to be done and “B” decides how to do it, the contract is probably one for service and the relationship is that of an independent contractor and principal.
The test is not wholly reliable for the reason that in the case of independent contractor, the principal may specify considerable details of the standards he requires to be met. Due to technological development and skilled advancement some employers do not have the necessary know-how to tell employees what to do e.g. the example of doctors, engineers, lawyers, pilots e.t.c.
The control test Origin is traceable in the following case laws:

The case of Yewens –vs- Noakes (1880) 6 QBD 530 where -LJ- Bramwell stated: ‘An employee is a person subject to control of the master as to the manner in which he shall do his work.’

In the case of Mersey Dock & Harbour Board –vs- Coggins (1947) AC 41 the board hired a crane and a driver to the firm of Steve Doers (loaders of ship) while working under Steve Doers supervision. The driver injured a 3rd party. The board was held negligently liable under vicarious liability because the driver’s expertise was such that Steve Doers could not direct him on how to do his work and in any case the board supplied and continued to control the capital equipment (the crane).

In Performing Rights Society ltd -vs- Mitchell & Hooker (1924) 1 KB 62 the defendant employed a band under a written contract for a year. The band had to provide services exclusively for a year at the defendant’s dance floor. The Plaintiff on account of breaches of copyright by the band who had played music without the consent of the copyright owner brought an action against the defendant. Justice McCardie in finding Defendant liable held there was a contract of service between the band and defendant. He opined;
‘It seems reasonably clear that the final test if there is to be one, is the nature and degree of detailed control over the person alleged to be a servant. However, the circumstance to be considered is one only of several but it is of vital importance.’

In Cassidy –vs- Ministry of Health (1951) 2 KB 333 the plaintiff’s head was operated on by doctor X a fulltime assistant medical officer at the defendant’s hospital. After operation the plaintiff complained of pain and apart from administration of seductive no further action was taken by doctor X or the surgeon who attended the plaintiff in the absence of doctor X. When the bandages were removed one hand was found practically useless and the plaintiff sued for professional negligence.
Held: the defendant was liable, because the doctor was employed and paid by the hospital. The Court stated that highly skilled persons may be employees even if the employer has no control of how they do their duties.
Judges have recognized that with time we should look at all factors to see what its legal effect is likely to be. Accordingly, they will look at the type of work, method and frequency of payment, length of service, power to dismiss among others. No one single factor will be decisive. The control test is in itself inadequate so that other ways have been advanced in looking at the question and one of this is the integration test.

2. The Integration test

In Stevenson, Jordan & Harrison ltd –vs- MacDonalds and Evans (1952) 1 TLR 101 the test was said to be whether the work done was an integral part of the enterprise resulting in the contract of employment or the work was just incidental to or auxiliary to the enterprise. In the above case, an accountant purported to assign some publishers copyright in a book based on his experience and knowledge acquired during employment by the plaintiff company. He had left the company but died before publication. One section of the book contained a series of lectures prepared and delivered by him while he was engaged in a company project.
The company brought an action to restrain the publication on the ground that the copyright was vested in the plaintiff company. Publication was restrained on the basis that the work was so integral to the work of the company. Lord Denning considered that; “An employee was a person whose work was integrated in the work of the business while an independent contractor merely works for business.” He further said, “One feature which distinguishes a contract of service from a contract for service is that in a 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 in a contract for service his work, although done for the business is not integrated to it but is only accessory to it.”
What makes a person’s work an integral part of an organization? What determines that the person’s work is an integral part of a business?
Person who receives periodic salary for his work is likely to be an employee, if paid by a commission or lump sum he is likely to be an independent contractor.
If the nature of employment is for fixed hours his contract is likely to be of an employee, if he has discretion as to working hours he is likely to be an independent contractor.
Employee is subject to internal rules of an organization, but an independent contractor is not.

3.The Multi - factor test

Under this test, all the relevant factors must be considered. The basic question is that- was this a contract of service in the view of an ordinary man? In explaining this test, we should consider the following case laws.

In Challinor –vs- Taylor (1972) ICR 129 Challinor was a taxi driver working for Taylor who owned the taxi. The arrangement was that Taylor maintained the vehicle and paid for petrol while Challinor worked as night driver for however long he felt fit paying Taylor a fixed percentage of his takings. Challinor was assessed for tax purposes as self-employed. But on the other hand, he paid as an employee contribution towards the weekly National Insurance Fund. Taylor sold the vehicle and Challinor sued for “redundancy pay” which he would only be entitled to if he were an employee. Influenced by Challinor’s ability to decide when and for how long to work, the Court decided that Challinor was an independent contractor and therefore not entitled to redundancy pay.

In Ready mixed Concrete –vs- Ministry of Pensions (1968) 2 QB 497 X was employed by the plaintiff company that made and sold concrete. In 1959 the plaintiff introduced a system of delivery of products by owner-drivers. It was decided by the company to separate the delivery side of the business from that of making concrete. In 1965, X entered a new contract with the plaintiff for carriage of concrete. He purchased a lorry through the plaintiff and used the lorry to deliver concrete according to plaintiff’s direction. It was a condition of contract that X would wear company’s uniform when delivering concrete. The issue was whether X was employee for the purposes of National Insurance Act. The Court Held that he was not. He was on business on his own account because the company would not have the authority to tell him how to use and maintain what was his. The Court looked at so many factors ranging from capital, mode of work; control among others to reach the decision.

Despite all this ‘’temporary work’’ remains a controversial and a problematic issue. The case of Market Investigation –vs- Ministry of Social Security (1969) 2 QB 173 from time to time a market research company used a particular woman’s services as an interviewer. There was no continuing relationship between them. The company did not promise to call upon her and she did not promise to avail herself when she is called upon. There was no agreement as to notice, holidays etc., as and when she did the work she was instructed, the technique and type of questions to be asked. The Court decided she was an employee because although the job lasted only a few days at a time the company had full control of the way it was done.

In O’Kelly –vs- Trusthouse Forte Plc (1983) IRLR 369 Regular casuals working from time to time as waiters were held not to be employees despite the high level of supervision. The determining factor was the absence of obligation on the part of defendant to provide work and on the part of the casuals to accept what was offered.

In Stevedoring &Havlage Services ltd –vs- Fuller (2001) the Court of Appeal held that an arrangement between a company and a worker under which a worker would provide services on ad hoc casual basis and which expressly provides that there is no obligation on the part of the company to provide any work and no obligation on the worker to accept any offer on work is not a contract of employment at all.