Employment Status
Dated: 04/11/2008
Jennings v The Forestry Commission
Employment Status
Court of Appeal finds that no employment relationship existed and claim fails; Lane v Shire Roofing considered - Jennings v The Forestry Commission 23.5.08
In the decision of Jennings v Forestry Commission [2008] EWCA Civ 581 the Court of Appeal upheld the defendant's appeal and concluded that:
- the claimant was not the defendant's employee but an independent contractor
- there was no breach of the duty to carry out risk assessments under regulation 3 of the Management of Health and Safety at Work Regulations 1999
- the defendant did not have sufficient control over the work equipment to be liable under the Provision and Use of Work Equipment Regulations 1998 ('the 1998 Regulations')
- the defendant had not assumed responsibility for the claimant so as to give rise to a duty of care.
Facts
The work involved the construction of about 2,100 metres of stock fence along a boundary between Forestry Commission and National Trust land. The lower part was accessible by road, with a relatively short journey from the road up to the fence line. The upper part was less readily accessible and was on very steep slopes.
On 1 September 2003 Mr Jennings entered into a written "service contract" with the Forestry Commission. The relevant schedule to this dealing with the work in question included details in relation to the specification of the work and health and safety issues. It was provided that all materials were to be taken to the fence line by helicopter or all-terrain vehicle by National Trust staff. However, discussions subsequently took place between Mr Jennings and the Forestry Commission where Mr Jennings indicated he would use his Land Rover for the lower part of the fence.
First instance decision
At first instance it was held that the Forestry Commission was liable to Mr Jennings in three ways:
- Under the Provision and Use of Work Equipment Regulations 1998.
- As an employer for breach of duty of care and breach of the duty to carry out a risk assessment under the Management of Health and Safety at Work Regulations 1999.
- For a breach of duty of care arising from the assumption of responsibility.
Court of Appeal
The Court of Appeal upheld the Forestry Commission's appeal against this decision and dismissed Mr Jennings' claim.
Employment status
The key issue considered by the Court of Appeal was whether there was an employment relationship between the Forestry Commission and Mr Jennings.
The case of Lane v Shire Roofing Company (Oxford) Ltd (1995) was considered as the most relevant authority:
- This case highlighted the issue of control as being important in considering whether an individual is an employee eg. who lays down what is to be done, the way in which it is to be done, the means by which it is to be done and the time by which it is to be done?
- But this test may not be decisive, for example in the case of skilled employees with discretion to decide how their work should be done. In such cases the question is broadened to whose business was it? The answer to this question may involve looking to see where the financial risk lies.
- These questions must also be asked in the context of who is responsible for the overall safety of the men doing the work in question.
The Court of Appeal considered that Mr Jennings "was plainly acting as an independent contractor and not as an employee". The fact that there was a detailed client specification for the work was perfectly normal in contracts for services. However, Mr Jennings had control over the way in which the work was to be done and when it was to be done. He was in charge of the work and was not subject to supervision. It was obviously his business.
PUWER
It was accepted that, if the Provision and Use of Work Equipment Regulations 1998 applied to the Forestry Commission, it would be liable as the Land Rover was work equipment being used at work which was not suitable.
On the basis that the Forestry Commission was not Mr Jennings' employer, the Court of Appeal considered whether reg 3(3) of PUWER applied. Regulation 3(3) applies PUWER to "a person who has control to any extent of work equipment ... and to the extent of his control."
Mr Jennings' case was that the Forestry Commission was in a position to prevent his using the Land Rover or to restrict its use to parts of the fence line where it was safe to use it.
The Court of Appeal considered it necessary to look at the contractual position. It held that the true terms of the agreement actually entered into by the parties were that Mr Jennings would use his Land Rover for the lower part of the job. He had assessed for himself that this would be "pretty straightforward". It followed that the Forestry Commission did not have control to any extent for the purposes of reg. 3(3).
Assumption of responsibility
The Court of Appeal did not accept on the facts that the Forestry Commission owed Mr Jennings a duty of care by having assumed responsibility in relation to the transportation of materials.
Comment
Cases such as Jennings turn on who had control at the material time. Here Mr Jennings had effective control. It was his decision as to whether to request alternative equipment, he chose not to do so. He was an independent contractor and the Court of Appeal agreed with the Forestry Commission that he took responsibility for the system he employed to complete the contract. He was truly independent and had to stand or fall by his own business decisions.Although determining whether a claimant is an independent contractor or an employee will be a difficult exercise requiring careful analysis of all the facts, this judgment nevertheless emphasised the need to look at the practicalities of the working relationship.
This Court of Appeal decision goes some way to define the responsibilities of a sub-contractor and the party with whom he contracts. However this decision does not mean that the Principal Contractor’s responsibilities are any less for it.
