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Is there any case law which has determined that an individual

who is under the control...
Is there any case law which has determined that an individual who is under the control of a hirer has not been an employee ?

I know that there is case law which allows for an individual who is not under the control of an employee i.e. brain surgeon but is still an employee but can you have the reverse ?

If you satisfy the first test of being under the control are you therefore always an employee i.e. having met the common law master/servant ?
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Answered in 5 hours by:
6/10/2013
Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 49,077
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

-Could you explain your situation a little more?
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Customer reply replied 4 years ago

We are being taken to court by the Government for a breach of the Employment Business and Employment Agency Regulations Act for the supply of an IT consultant.


 


The regulations define an employment business as supplying an individual who "is under the control" of the hirer. We only supply highly skilled IT individuals and we do not believe that the individual was under the control of the hirer.


 


We believe that if an individual is under the control of the hirer then the person we supplied can only be described as "an employee" as they pass the basic test of common law "master - servant" and as such they should be paying tax in accordance with IR35. Conversly, if the hirer believe that they are under "the control" of the hirer then the hirer should therefore be complying with the Agency Workers Regulations.


 


I have seen some case law which argues that certain individuals whom are not under the control of the hirer i.e. Brain Surgeon but is still classed as an employee but I am trying to see if there is any case law that works in the reverse, i.e. they are under the control of the hirer but are not considered an employee.


 


Can you help ?


 

I have looked into your query but do not think I have the answer to your question so will opt out and let other experts take this further if they can. Someone should respond shortly. Please do not reply in the meantime as that will just assign the question back to me and you will experience a delay. Thanks
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UKSolicitorJA
UKSolicitorJA, Solicitor
Category: UK Employment Law
Satisfied Customers: 4,312
Experience: solicitor
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The court of appeal case Quashie vs Stringfellows may assist you where the court of appeal held that a stripper was not an employee even though she claimed to be under the control of the club, see here: http://www.ppma.org.uk/ppma-news/quashie-v-stringfellow-restaurants-ltd-lap-dancer-was-not-an-employee-after-all/

This is a very difficult area even for the courts!

Good luck


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Customer reply replied 4 years ago

Thanks UK SolicitorJA,


 


I read your link, but from my reading, this has more to do with mutuality of obligation than control per se. Also it would appear that she was initially considered an employee and then this was overturned on appeal but the decision doesn't appear to have been motivated by control.


 


How can I get to see the full reading ? Where can I go to search for the transcripts for this and related cases ?


 


Our issue is that the client is going to argue that the consultant is under the control of the hirer, the consultant is going to argue that they were not under the control.


 


The hirer is arguing that they are under the control because they took a number of other consultants who were being supplied by us on via another company and are now trying to use the regulations to say they don't owe us anything for taking these other consultants.


 


The consultant in question in the crowns case has his own Limited Company and will have been paying himself as a company director and not as PAYE. If he is deemed effectively an emloyee his personal tax return should reflect this.


 


In addition, if the hirer claims that the individuals are under their control then they should really be fulfilling the obligations of the Agency Workers Directive (Regulations)


 


What would happen in a court of Law if two parties on the prosecution side are arguing against each other. And how would a court view a company which claims protection under statute but is not complying with another piece of statute ?


 


I look forward to your reply


 


 

Hi Jason,

I don't think there is a specific case which fits what you are looking for.

The Stringfellows judgement is here: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2012/1735.html&query=stringfellows+and+quashie&method=boolean

You can also look up other cases on the bailii site for free. Transcripts are not normally published, you would need to go to the particular court and see what records are available.

As for prosecution, you would need to ask a criminal lawyer I am afraid. It is difficult to second guess what a court would do if someone is complying with one statute but not another, obviously it would take everything into consideration.

I have been able to assist as much as I can.

All the best



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