Jennings v The Forestry Commission
It is often not easy for courts to decide whether someone is an employee or self-employed, but the Court of Appeal has said in Jennings v The Forestry Commission (IDS 862) that the most important thing to ascertain is who has control over the way in which the work is to be done (including the use of work equipment).
Basic facts
Mr Jennings entered into a written service contract with the Forestry Commission on 1 September 2003 to undertake fencing work on land between the Commission and the National Trust.
The agreement stipulated that, as in independent contractor, he would ensure that any vehicle he used would be in a roadworthy condition and “suitable for the relevant road conditions and terrain.”
He was required to comply with all health and safety law and to carry out his own risk assessment. The Commission was responsible for taking all materials to the fence line by helicopter or all-terrain vehicle.
Shortly before the work began, Mr Jennings told the Commission’s contract manager that he would use his own Land Rover (which had been modified and which he had used on previous jobs with the Commission) to deliver materials to the lower part of the site.
On the afternoon of 19 January 2004, Mr Jennings started bringing posts up to the tree line in his Land Rover. However, he lost control of the vehicle when crossing a steep slope and was seriously injured. Mr Jennings brought proceedings for damages.
County court decision
The trial judge found that the "factual reality" of the relationship between the Commission and Mr Jennings was that of employer and employee. Although he acknowledged that Mr Jennings was self-employed, he was more like someone “on the lump” for health and safety purposes.
He found the Forestry Commission liable under the 1998 Provision and Use of Work Equipment Regulations (PUWER) because it had control of the work equipment which Mr Jennings had used.
Court of Appeal decision
The Court of Appeal, however, disagreed. It said that Mr Jennings “was plainly acting as an independent contractor and not as an employee”. Although he had to work to a detailed specification set out by the Commission, this was perfectly normal in contracts for services.
Instead, the Court said it was much more important to ascertain who had control over the way in which the work was to be done and when it was to be done.
Mr Jennings was not supervised by the Forestry Commission and was more or less able to decide when to do the work. He could choose whether – and on what terms - to employ an assistant, he provided most of the materials and used his own Land Rover.
He was also obliged to comply with health and safety requirements, to maintain third party liability insurance and carry out his own risk assessment. The contract expressly stated that he was employed "as an independent contractor" and this was the "factual reality" of the relationship between them.
But did the 1998 regulations apply? No, said the Court. It was Mr Jennings himself who assessed that it would be “pretty straightforward” to use the Land Rover on the lower part of the job. As both parties were working on the basis that he was in charge of the work, it was up to him to raise any concerns that he might have about delivering materials to the site.
This was not, therefore, a situation in which the Commission “had factual control but failed to exercise it, ‘allowing’ the claimant to use the Land Rover when he could have stopped him. The relevant control lay in practice with the claimant”.
Nor did the Forestry Commission owe Mr Jennings a duty of care because it had assumed responsibility for delivering the materials necessary to do the job. It was down to Mr Jennings to make his own assessment in relation to the materials needed for the lower part of the job.
As a result, the Forestry Commission had not breached any duty to him. The accident was his own fault and he lost the case.