Ms Joan Gordon:

I can do no better than repeat what the courts have said. They found that the determination as to the appropriate insurability classification must be arrived at by looking at what a person actually does, the way in which it is done and the terms and conditions under which the person is engaged, be they written, verbal or implied. It is clear from the relevant case law that there is no one factor which may be taken as determinate of either a contract of or a contract for services, but I understand the neutrality of obligation test has been given precedence in some recent jurisprudence. Reflecting the precedence from the court, the code of practice places an emphasis also on the need to look at the job as a whole, including the working conditions and the reality of the working relationship when considering the nature of the employment relationship. The existing code states that the overriding test will always be whether the person performing the work does so as a person in business on their own account.

I was asked for five, but the four main tests for establishing the difference between a contract of service and a contract for services that have evolved from the case law of the courts can be summarised as being the following. The first is the control test, that is, is the person under the control of another person who directs as to how, when and where the work is to be carried out? The second is the integration test, that is, has the worker become part and parcel of the organisation? The third is the test of mutuality of obligation, that is, is there a mutual obligation between the parties to provide and accept the work offered? The fourth test is the test of economic reality. This test in my view probably incorporates all of the above to establish whether the worker is in business on his or her own account.