Market Investigations Ltd v Minister of Social Security
| Jurisdiction | England & Wales |
| Judgment Date | 29 July 1968 |
| Date | 29 July 1968 |
| Court | Queen's Bench Division (Administrative Court) |
Queen's Bench Division.
Cooke J.
Peter Pain QC and KE Evans (instructed by PR Kimber) for the appellant.
Gordon Slynn (instructed by the Solicitor for the Ministry of Social Security) for the respondent.
The following cases were referred to in the judgment:
Amalgamated Engineering Union v Minister of Pensions and National InsuranceWLR [1963] 1 WLR 441
Bank voor Handel en Scheepvaart NV v SlatfordELR [1953] 1 QB 248
Cassidy v Ministry of HealthELR [1951] 2 KB 343
Collins v Hertfordshire County CouncilELR [1947] KB 598
Hobbs v Royal Arsenal Co-operative Society LtdUNK (1930) 23 BWCC 254
Montreal Locomotive Works v Montreal and A-G for CanadaUNK [1947] 1 DLR 161
Morren v Swinton and Pendlebury Borough CouncilUNK [1965] 2 All ER 349
Queensland Stations Pty v Federal Commr of TaxationUNK (1945) 70 CLR 539
Ready Mixed Concrete (South East) v Minister of Pensions and National InsuranceTAXUNK [2010] BTC 49; [1968] 1 All ER 433
Sadler v HenlockENR (1855) 4 E & B 570
US v Silk (1946) 331 US 704
Whittaker v Minister of Pensions and National InsuranceELR [1967] 1 QB 156
National Insurance contributions - Employment status - Contractual provisions - Contract of service - Control - Whether market researcher an employed person - Whether in business on own account.
This was an appeal by a market research company from a decision that a person who carried out interviews for it was an employee under a contract of service.
In addition to its permanent headquarters staff, the company employed interviewers for about 8,000 to 10,000 interviews annually to provide information for the company's customers about the habits and opinions of members of the general public, retailers or other people in commerce, industry and the professions. The company employed a small number of interviewers who worked full-time, but for the most part it drew from a panel of about 470 interviewers, mostly married women wishing to earn "pin money". The company applied to the Minister of Social Security for a decision whether M, a member of that panel, who from time to time was engaged by the company to act as an interviewer in connection with particular surveys which the company was conducting, was included in the class of employed persons for the purposes of the National Insurance Acts.
The interviewers were paid either on a daily basis or sometimes per interview. There was no provision for time off, sick pay or holidays. The lack of holidays was attributable to the fact that there were no specified hours of work. The lack of sick pay or time off resulted from the fact that the contract was of very short duration.
Held, dismissing the company's appeal:
1. The fundamental test to be applied was whether the person who had engaged himself to perform the services was performing them as a person in business on his own account. No exhaustive list had been compiled of the considerations which were relevant in determining that question, nor could strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that could be said was that control would always have to be considered, although it could not be regarded as the sole determining factor; and that factors which might be of importance were such matters as whether the man performing the services provided his own equipment, whether he hired his own helpers, what degree of financial risk he took, what degree of responsibility for investment and management he had, and whether and how far he had an opportunity of profiting from sound management in the performance of his task.
2. On each occasion on which M engaged herself to act as an interviewer for a particular survey she agreed with the company, in consideration of a fixed remuneration, to provide her own work and skill in the performance of a service for the company. Two questions arose: first, whether the extent and degree of the control exercised by the company, if no other factors were taken into account, was consistent with her being employed under a contract of service; second, whether when the contract was looked at as a whole, its nature and provisions were consistent or inconsistent with its being a contract of service, bearing in mind the general test.
3. The facts demonstrated that the company exercised control as to how the interviews were actually carried out. The instructions in the company's "Interviewer's Guide" were incorporated into the terms of the contract between the interviewer and the company. Furthermore, after the interviewer had agreed to take part in a particular survey, and the contract had been made, the interviewer was then sent instructions which according to the Interviewer's Guide gave details of whom to interview, what to say to informants, how to handle the questionnaire and other forms, and also deal with contact with the office. In addition to that, the interviewer might in particular cases be required to attend the office of the company for instructions, or might receive instructions from a supervisor. Although there were limitations on the right of the company to give instructions to M, the control which the company had the right to exercise was so extensive as to be entirely consistent with M's being employed under a contract of service. The fact that M had a limited discretion as to when she should do the work was not inconsistent with the existence of a contract of service. Nor was there anything inconsistent with the existence of a contract of service in the fact that M was free to work for others during the relevant period.
4. M was free to work for others, although she did not in fact do so. Although she had to deploy her own personality and skill, the opportunity to do so was frequently present in what was undoubtedly a contract of service. Those factors were not enough to lead to a conclusion that M was in business on her own account. She did not provide her own tools or risk her own capital, nor did her opportunity of profit depend in any significant degree on the way she managed her work. The Minister was right in concluding that M was employed by the company under a series of contracts of service.
The appellants in this case, Market Investigations are a company engaged in the field of market research. In addition to their permanent staff at the headquarters office, they employ interviewers for about eight thousand to ten thousand interviews annually to provide information for the company's customers about the habits and opinions of members of the general public, retailers or other people in commerce, industry and the professions. The company employ a small number of interviewers who work full-time, but for the most part they draw from a panel of about 470 interviewers, mostly married women wishing to earn pin money. Between 14 May 1964 and 3 December 1965, Mrs Ann Florence Irving was a member of that panel and from time to time during that period she engaged herself to the company to act as an interviewer in connexion with particular surveys which the company were conducting. On 2 August 1966, the company applied to the Minister of Social Security for a decision whether, whilst working under those engagements, Mrs Irving was included in the class of employed persons for the purposes of the National Insurance Acts 1946 and 1965, and was employed in insurable employment within the meaning of the National Insurance (Industrial Injuries) Acts 1946 and 1965.
Section 1(2) of the National...
To continue reading
Request your trial
-
Wilson
...[114] Ms Murray relies on the cases of Hall (HMIT) v Lorimer [1993] BTC 473 and Market Investigations Ltd v Minister of Social Security [2010] BTC 103 to describe the correct approach to assessing the question of whether Mr Wilson was an employee. [115] Ms Murray submits that even though Mr......
-
Paya Ltd and Others
...Court in Autoclenz Ltd v Belcher [2011] UKSC 41; [2011] 4 All ER 745 at [18]. In Market Investigations Ltd v Minister of Social Security [2010] BTC 103, Cooke J approached the question of whether there was an employment contract by examining whether the individual in question was in busines......
-
Primary Path Ltd
...W would not be an employee of G but an independent contractor (Market Investigations Ltd v Minister of Social Security[1969] 2 QB 173; [2010] BTC 103 and Hall (HMIT) v Lorimer[1993] BTC 473 DECISIONIntroduction 1.This is an appeal by Primary Path Ltd ("the Appellant") in relation to what is......
-
Basic Broadcasting Ltd
...compass. Footballers and ophthalmic surgeons are examples. Cooke J noted in Market Investigations Ltd v Minister of Social Security [2010] BTC 103 at 108–109 that appointment to do a specific task at a fixed fee is not inconsistent with a contract being a contract of service. Other provisio......