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Most employment rights are only available to ‘employees’ – ie
those who work under a contract of employment. What distinguishes a contract of
employment from other contracts where someone works for another in return for
payment is that in contracts of employment, the ‘employer’ has a contractual
right of control over the work of the ‘employee’. Leaving an employee in charge
and allowing them to exercise their own judgment does not necessarily mean
there is insufficient control for them to be employees.
W & T lived in an annexe to a farm and were paid a set
amount each month to maintain and manage the farm. The owners of the farm only
made occasional visits. W & T were allowed 30 days’ holiday a year. They
were dismissed and complained that their dismissals were unfair. Their claims
could only be heard by a tribunal if they were employees.
A tribunal held there was
insufficient control by the family for W & T to be employees. The EAT and
Court of Appeal disagreed. The low level of control did not preclude the
possibility that they were employed. The level of control, including the limit
on holidays and the fact that the family could (even if they did not in
practice) have exercised day-to-day control, was sufficient to make them