Case law: the question of ultimate control

Bannerman v. Euroscot Engineering Ltd [2020] UKEAT S0010/19/AT

Bannerman pursued a claim for unfair dismissal, wrongful dismissal and ancillary claims. In the first instance the employment tribunal (ET) had to decide on whether he was an employee, a worker or self-employed.

The ET decided that Bannerman was not an employee of Euroscot. It also decided that there was no written contract of employment. So, the only source of evidence from which contractual terms could be implied, were the actings of the parties. Bannerman had day-to-day control and in some circumstances told the managing director what to do but, the claim came down to whether the managing director had ‘ultimate control’ and whether this satisfied the Ready Mix test.

Bannerman relied on White v Troutbeck [2013] IRLR 286. In that case, the E.A.T. and the Court of Appeal held that “…even where a putative employee appears to be working autonomously, if the legal position is at variance with the working practises of the putative employee, those facts cannot override the legal position.”

The Employment Appeal Tribunal agreed with the ET that Bannerman was not an employee. The issue of whether he was a worker was not discussed.

Published: 3 September 2020