UT/2020/000377 - [2024] UKUT 00099 (TCC)

This ground of appeal relates to the first limb of the RMC test. This is the test set out in the judgment of MacKenna J in Ready Mixed Concrete in which he described the essential elements of a contract of employment as follows (at page 515C - D):

“A contract of service exists if these three conditions are fulfilled. (i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.”

The first limb of that test is often referred to as a requirement for “mutuality of obligation”. MacKenna J explained this factor at page 515E:

“There must be a wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill. Freedom to do a job either by one's own hands or by another’s is inconsistent with a contract of service, though a limited or occasional power of delegation may not be…”

This element of the RMC test has generated a considerable amount of comment in the case law. We will address the principles that are derived from that case law later in this decision.