INTRODUCTION

Employer; is any person including the government and an executive agency who/which
employs the employees. This is provided under Section. 4 of The Employment and Labour
Relations Act (ELRA), No. 6 of 2004.

Employee; is any individual who has entered into a contract of employment and who undertakes
to work personally for other party to the contract.

Employment relations are divide into two forms which are; the employee and the
independent contractor, the employee is employed under a contract of service and he is an
independent contractor under a contract for services. Contract of services illustrates The
contract of services allows the employer and employee to deliberately discuss and agree upon
terms and conditions for a long term period. The employee is made to undertake the oath to
follow company policies, timings, regulations and other codes of ethic for the duration of the
time that he is hired, however for many professionals, contract of services may not be the
preferred scenario for those seeking long term commitment. On the other hand Contract for
service defines the contractual obligation between two businesses or a business with self-
employed individual, which in legal world is considered to be an entity when entering the
contract for services. The contract for services is signed between the two entities to fulfill the
objectives within legal means, the basic concerns are with the delivery of the goals in the
predetermined time.

MAINBODY.

In distinguishing between the contract of service and the contract for services there have been
tests which have endeavored to make a clear distinction between the two they include;-

The first is the Control Test,under the control test one is an employee if that person is
subject to the employer's command, this test looks on the power of the master to control all
the affairs of the work over the employee, it was a test developed in the case of Gould v. West
Minister of National Insurance and another in this case the House of Lords provided indicators
for control test which included the power of the master to select his servants, the power of the
master to pay wages, the power of the master to control methods of doing work and lastly the
master's power to suspend and dismiss.Also in the case of Yewens v. Noake Bramwell stated
that “a servant is a person subject to the command of his master as to the manner in which he
shall do his work” in this particular case the courts basically say that if an employer was able to
tell an employee not only what to do, but stipulate how to do it and when, then this would
indicate a contract of employment existed, whereas a smaller degree of control would point
towards self-employment. Also in the case ofPatrickRoche v. Patrick Kelly it was held that the
principle test is the right of the master to direct servants as to what is to be done and how it is to
be done. In this case the defendants had a contract with a farmer to build a barn and had
employed the plaintiff to build it for a lump sum of 300 euros.

The defendants were to supply the construction materials and the plaintiff was to build the barn
under their specifications. The defendants monitored the progress of the construction but at no
time did they tell plaintiff how to do the job nor did they supervise his working methods. The
plaintiff had considerable experience and expertise in building barns and had done similar jobs
for the defendant in the past. The plaintiff was injured during the construction of this barn and
one of the issue was whether he was an employee of the defendant or an independent contractor.

The relationship between the independent contractor and an employee depends on the terms of
agreement concluded, the principal can’t control the manner of doing work. However the control
test failed to cover every situation of the employer employee relationship hence establishment of
integration test.

The second test that can be used is the IntergrationOrOrganisation Test. It was
established in the case of Cassid v. Ministry of Health in this case Denning L.J (as he then was)
argued that;

“The hospital authority is liable for the negligence of professionals’ men employed by the
authority under contract for services as well as under contract of service. The authority
owes a to give treatment, medical surgical, nursing and the like and though it may
delegate the performance of that duty to those who are not its servants, it remains liable
if that duty is improperly or inadequately performed by its delegates”

This test was introduced by Dening LJ in Stevenson, Jordan and Harrison Ltd v. Macdonald
andEvans Ltd. He stated that an employee is a person who is integrated with others in the work
place or business even though the employer does not necessarily exercise a detailed control over
what he does. The courts in applying this test, will apply whether the worker was a vital part of
the operation of the work place.

Examples of employees that fall under this category are surgeons, pilots etcwhose
work is an integral part of the business. Re Sunday Tribune The difficulties in the control test
were recognised where skilled workers weretold what to do but not how to do it. In this case two
journalists were doing similar work. The distinction was in howthe work was done by each
journalist. It was held that one was an integral part of the Sunday Tribune while the otherwas a
freelance contributor. Used control in the starting point but moved away from it

When the professional people are doing their work, it is hard for any other person to intervene, in
such circumstances. An employee is looked at, by looking on whether he is part and parcel of the
business. This test however has its shortcomings in the sense that not everyone who is seen as
part and parcel of the business is an employee, there could be people or experts hired but not
directly integrated to the business, so due to that shortcoming hence the multiple test was
established

The third test, is the MULTIPLE TEST, this test was established because there are
situations to which the courts are faced with cases in which they fail to apply either of the two
between control and organizational, so the multiple test is said to mean the use of common sense
it is a combination of the other two tests.

It’s worthy drawing example from the case of Ready Mixed Concrete v. Minister for pensions a
contract and a lorry driver stated that the lorry driver was self-employed. He owned, insured and
maintained his own lorry, but the plaintiffs had helped finance its purchase. He wore a uniform,
and the lorry was painted with the company’s colors. He could delegate the driving and was paid
per mile driven. The issue arose as to whether he was an employee and whether the plaintiffs
should have been making pension contributions for him to the defendants. McKenna J stated that
three conditions had to be fulfilled to establish a contract of service;

a) There must an obligation of the person to provide his own skill and work in return for
a wage or other remuneration.
b) There must be a sufficient degree of control by the employer
 c) The other provisions of the contract must not be inconsistent with its being a contract
of service

The court found that the economic reality of the situation should also be considered when
coming to a decision. Having regard to all of the factors, the court concluded that the lorry driver
was an independent contractor.

Also from the case of Director of Public Prosecution v. EliatoshaMosha and Another in this
case the two respondents were charged of four counts which are failure to prepare and maintain a
contract of service, contrary to section 35 (1) (2) and (3) of the Employment Ordinance 1 the
second count was the failure to keep a record of wages contrary to section 17 (1) of The
Regulation of Wages and Terms of employment Ordinance 2 Failure to ensure themselves in
respect to liability to their employees contrary to section 25(1) and (2) of the Workmen’s
Compensation Ordinance3 and the last count being failure to pay minimum statutory wages
contrary to section 12 of the Regulations of wages and Terms of employment ordinance 4 in the
district court of Mwanza, they were acquitted on all counts at the trial the director of public
prosecution however was aggrieved by the decision and appealed in the high court also appeal
was dismissed on the same facts established in the lower courts.

CONCLUSION

In a perfect world judges could have been revealed in the tasks of running themselves into classy
analysts, for the categorization of those who buy and sell labour hours could have been passed
over to specialist employment tribunals staffed by experts in workplace law. However the
records show that judges have been up in devising legal test that have kept pace with the
changing workspace landscape and the shifting line on class identity, credit must be given to the
subtle twist to doctrine that have been introduced to limit scope for creative lawyers and
employers bent on putting genuine employees into basket of independent contractors.

BIBLIOGRAPHY
1
Cap 336 R.E 2019
2
Cap 300 http://tanzanialaws.com/index.php/principal-legislation/regulation-of-wages-and-terms-of-employment-
act
3
Cap 263 of 2015
4
Ibid section 12
STATUTES

Employment Ordinance cap 336

The regulation of wages and terms of employment Ordinance cap 300

Workers' Compensation Ordinance cap 263

CASES

Gould v West Minister of National Insurance and Another (1951) AER 368, 371

Yewens v. Noake (1880) 6 QBD 530

Patrick Roche v. Patrick Kelly Ltd (1969) IR 100

Cassid v. Ministry of Health (1951) 2KB 343

Stevenson, Jordan and Harrison Ltd v. Macdonald and Evan's Ltd (1952) 1 TLR 101

Re Sunday Tribune (1984) IR 505

Ready Mixed Concrete v. Minister for Pensions (1968) vol 2 QB 497

DPP v. Eliatosha Mosha and Another (1984) TLR 28.

BOOKS

Law Society of Ireland, Employment Law (3rd, OUP, 2010)

Daly & Doherty, Principles of Irish Employment Law, (Clarus Press, 2010)

Meenan, Employment Law (Dublin, Round Hall, 2014)