Never Sent?

Any consideration of the common-law employment status (CLES) of a contract must start with a careful examination of what the parties believe that they have agreed. If the parties (and the tax gatherer) can reach consensus on what the parties believe that they agreed, the focus then passes to the body responsible for collecting National Insurance. They need to decide whether there is sufficient evidence to challenge what the parties believe that they have agreed. This is what happened in the Ready Mixed Concrete (RMC) case, and the Market Investigations (MI) case.

As I suggested to Mark Cracknell, HMRC are wrong to believe that CLES can be established directly from consideration of what happened in the contract; a business contract never just emerges from what has happened in the conduct of a business relationship – it is an advance agreement that defines and constrains what both parties believe ought to happen in their business relationship. If a dispute arises which requires adjudication, the adjudicator may look at what has practically happened in the conduct of the contract, in order to know whether the contract agreement by itself is the material from which a CLES decision must be drawn. In the RMC case, J McKenna decided that the evidence considered by the Minister for Pensions showed no reason why he was obliged to look beyond the detailed contract that created the CLES situation that he was required to adjudicate.

In the MI case, J Cooke decided that a Guidance Manual that had not been considered contractual by the engager, must nevertheless be implied into all their interviewer contracts, the part-time ones, as well as the full time. Thus the part-time interviewers worked under contracts that possessed employed status, rather than self-employed; they were subject to a right of control, even if such control was not routinely exercised. When J Cooke considered whether there was evidence that the part-time interviewers were in business on their own account, he was checking the conclusion that he had already reached after reviewing the contracts from the perspective of <control>.