ESM7025 - Case Law: Morren v Swinton and Pendlebury Borough Council

[1965] 1WLR 576

Point at issue

Whether an engineer, who worked for a local authority, was engaged under a contract of service or a contract for services for the purposes of the Local Government Superannuation Act 1937.### Facts

The Borough Council (“the Council”) entered into an agreement with a firm of consulting engineers, Messrs. J B Kershaw and Kaufman, (“ the firm”) for certain sewerage and sewage disposal services. As part of the agreement, the Council was responsible for appointing a resident engineer, to be approved by the firm, to supervise the works but under the firm’s instructions.

The resident engineer worked under the supervision of the firm and the post was not superannuable.

Mr Morren applied for the post and was appointed by the Council who also:

• had the right to dismiss him
• paid his salary, travel and subsistence costs and NICs
• determined his holiday entitlement via the “Terms of Employment”.

But, importantly, the Council was not responsible for directing or controlling Mr Morren’s work. This was the firm’s responsibility.### Decision

Mr Morren was employed under a contract of service.### Commentary

Lord Chief Justice Parker stressed the importance of the factor of superintendence and control but added it was not the determining test. In referring to earlier cases he said

“Clearly superintendence and control cannot be the decisive test when one is dealing with a professional man or a man of some particular skill and experience. Instances of that have been given in the form of a master of a ship, an engine driver or a professional architect, or as in this case, a consulting engineer. In such cases there can be no question of the employer telling him how to do work; therefore the absence of control and direction in that sense can be of little, if any, use as a test.”

The other considerations e.g. right of dismissal, holiday pay and notice period, led him to the conclusion that Mr Morren was an employee. The power of selection was delegated to the consulting engineers but this did not alter the fact that the Council engaged him.

This case confirms that where the right to control how the work is done is present it can be a strong pointer towards employment. However, control over how a job is done can only be exercised where there is scope for it.

Many employees are professionals or skilled workers where control over how they work is not really appropriate and they do not work under the direct supervision of their employer.

This also applies to workers who do not have professional qualifications, for example, a skilled carpenter or plasterer will not need to be told how to do his job. This is reinforced in the casual worker field by the case of Lee Ting Sang v ChungChi-Keung (1990) 2AC374 (see ESM7140).