Ferguson v John Dawson & Partners (Contractors) Ltd

The legal character of a working relationship depends upon the contractual rights and duties viewed as a whole. A label chosen by the parties, including a description of a labourer as self-employed, cannot conclusively determine that character or transfer an employer’s statutory safety responsibilities.

Relevant considerations include control, the power to dismiss, provision of tools, remuneration and whether the worker conducts a business on his own account. Terms of an informal and partly expressed engagement may be identified from the circumstances, trade practices and the parties’ conduct. A place used for work for 10 or 15 minutes may be used for an appreciable time and therefore constitute a working place requiring suitable guard rails.

A general labourer fell about 15 feet from an unguarded flat roof while removing scaffold boards for building contractors. Boreham J awarded damages for breach of statutory duty, holding that the labourer was employed under a contract of service and that the roof was a working place within regulation 28(1) of the Construction (Working Places) Regulations 1966.

The contractors appealed on liability. They argued that the labourer was a self-employed member of a lump labour force and that his intended work on the roof would not occupy an appreciable time. The central questions were whether the relationship was one of employer and employee and whether 10 or 15 minutes’ work made the roof a working place.

1. Appeal dismissed by a majority. Megaw and Browne LJJ held that the plaintiff worked under a contract of service and was protected by the statutory duty to provide guard rails. Lawton LJ dissented on the employment issue but agreed with Megaw LJ on the remaining issues.
2. Working place. Megaw LJ, with whom Browne LJ agreed and from whom Lawton LJ did not differ on this point, held that the roof was to be used for an appreciable time. The intended work of removing 12 or 14 scaffold boards would take 10 or 15 minutes. That period was appreciable in the ordinary meaning of the word, so the roof was a working place for regulation 28(1) of the Construction (Working Places) Regulations 1966.
3. True contractual relationship. The majority held that the relationship had to be determined from the contractual rights and duties viewed as a whole. The description of the plaintiff as a self-employed labour-only subcontractor was a guide at most. It could not conclusively determine the legal relationship or transfer a statute-imposed safety duty where the substance of the agreement was a contract of service.
4. Identification of contractual terms. The engagement was not a single-term agreement concerning self-employment. Terms could be inferred from the circumstances, established trade practices and the parties’ accepted conduct. The defendants could hire and dismiss the plaintiff, move him between sites, choose his work, direct him when and how to perform it, and provide the necessary tools. He was paid hourly wages. Those features established an employer-and-employee relationship.
5. Business on own account. Browne LJ additionally applied the inquiry whether the worker performed the services as a person conducting a business on his own account. The plaintiff was a general labourer working within the defendants’ building business, not a person carrying on an independent business.
6. Dissent. Lawton LJ considered the parties’ intention to avoid a master-and-servant relationship to be the predominant factor. In his view, a person could sell his labour and accept extensive control while remaining self-employed, and the plaintiff should not be permitted to adopt inconsistent statuses for taxation and compensation.

The appeal was dismissed with costs. Leave to appeal to the House of Lords was granted, and the stay of execution continued on the defendants’ undertaking to prosecute any appeal diligently.

1. Court of Appeal: By a majority, dismissed the contractors’ appeal on liability and affirmed the judgment below. Leave to appeal to the House of Lords was granted.
2. Crown Court at Leeds: Boreham J entered judgment for the plaintiff for £30,387.88, including interest, after finding a contract of service and a breach of the applicable guard-rail duty.