6. Employment Income - Employment/office

Question 1

Lee v Lee’s Air Farming

Answer 1

director of a company even if COE and owning all shares = office

Question 2

McMilan v Guest

Answer 2

company director (even if no COE) = office

Question 3

Dale v IRC

Answer 3

Trustee/executor = office

Question 4

Ellis v Lucas

Answer 4

company auditor = office

Question 5

Mitchell & Edon v Ross

Answer 5

NHS Consultant

Question 6

Ministry of Housing v Sharp

Answer 6

Local land charges registrar

Question 7

Edwards v Clinch

Answer 7

degree of continuity and position independent of the individual holding it = office

Question 8

Davies v Braithwaite

Answer 8

employment - no

• look at contracts as a whole (total commitments in the year)
• each commitment was in course of exercising profession

Question 9

Fall v Hitchen

Answer 9

dancer (ballet)

• employee
• looked at contract in isolation
• contract looked like employment contract = fulll time, specified hours, first call on time, permission needed to work for someone else

Question 10

Market Investigations

Answer 10

Cooke J lists factors for employment

1. control
2. provision of equipment
3. helpers
4. financial risk
5. degree of responsibility for investment/management
6. opportunity to benefit from sound management

BUSINESS ON OWN ACCOUNT

Question 11

Hall v Lorimer

Answer 11

DEPENDENCY ON PARTICULAR PAYMASTER TEST

• didn’t have own equipment (but doesn’t matter - equipment bulky, would expect hirer to provide it)
• he bore the risk if client didn’t pay so he is self-employed

Question 12

argent v minister of social security

Answer 12

professional actor taught part-time at school
not employee
regard totality of facts

you can have different capacities in different roles (compare fuge)

• paid hourly
• no written contract
• no prescribed syllabus

Question 13

ready mixed contrete

Answer 13

control is more about mutual obligation - R promises to provide work, E promises to do it, R pays even if no work provided)

contract exists if

1) servant agrees in consideration of wage to provide work/skill
2) servant expressly/impliedly is under control
3) provision of contract is consistent with COE

Question 14

IRC v Turnbull

Answer 14

marine engineer acted as London rep for two companies

• employee
• because he began as an employee

Question 15

Marsh v ITC

Answer 15

Commercial traveller representing a firm of flour merchants and 4 other firms

• not employee

Question 16

Fuge v McCelland

Answer 16

full time teacher taught adult evening classes = separate agreement = employee

Question 17

so for employment, case law tests incl:

Answer 17

control
integration
economic reality
mutuality of obligation 
business on his own account

Question 18

Autoclenz v Belcher

Answer 18

SHAM allowed

• document might not reflect the true agreement
• so focus on actual obligations
• look at all evidence (incl. written terms)
• read contract in context of whole agreement