Control test

One of a number of tests developed by the courts to test the employee's status.

For vicarious liability to arise there must be a relationship of employer and employee for the employer to be liable for the tortfeasors's act.

A number of tests were developed by the courts to test the employees status and this includes the Control Test.

The question of whether the tortfeasor was an employee was originally answered on the basis of the Control Test.

The Control Test had it's origins in the Master and Servant LawThe nature of the test being that the issue of whether the tortfeasor was an employee was dependant on 'the nature and degree of detailed control.....'   Performing Right Society, Limited v. Mitchell and Booker (Palais de Danse), Limited. (1924). In the case of Performing Rights Society v Mitchell & Booker Ltd (1924) the defendants were sued for the breach of copyright by a jazz band. The defendant occupied a dance-hall and had agreed in writing for a band to play at the hall as long as it did not infringe any copyright in the music it chose to perform. Unfortunately they chose to play some music, but did not have the plaintiff's permission. The plaintiff decided to sue the defendant looking to hold them responsible for the actions of the band. However the  defendant’s liability depended on the band being its employee. The court looked at the facts that regular hours where worked each day by the band, there was a fixed period of employment, the band had been told where they should work, and they had exclusivity of service, there was also a right to summarily dismiss the band for the breach of any reasonable instructions or requirement. The band was held to be an employee. In short the  court looked at the 'nature and degree of detailed control over the person alleged to be a servant'.


The Courts found that it was helpful to look at other key factors and in Short v Henderson Ltd (1946) Lord Thankerton referred to selection, wages, control and dismissal.

The Control Test later gave way to the wider test of Integration as favoured by Lord Denning in Stevenson, Jordan & Harrison Ltd v MacDonald and Evans (1952) and the Economic Reality Test proposed by Mackenna J in Ready Mixed Concrete (South East) Ltd v Minister of of Pensions (1968).

 

 

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