"(1) The agreement was to have effect for a five year period from1st May 1998 ; (2) NT was to provide staff to operate certain trunking routes on five nights per week, from Monday to Friday, during every week in the year except Christmas week; (3) The routes in question were eight routes from sub-depots in the London area and nine routes from sub-depots in Scotland; (4) Under Clause 4 of the Agreement Interlink was responsible for the provision of the necessary vehicles and trailers, the payment of all operating costs of the vehicles including maintenance and insurance and the loading and unloading of the vehicles and trailers; (5) Interlink agreed to procure that its insurers would waive all subrogation rights against NT and its staff; (6) It was expressly provided that NT would not be responsible for any of the operational costs of running the vehicles and that all it would provide was staff and what is described as "the London site" (it is in fact a yard at Gerrards Cross in Buckinghamshire); (7) Clause 6 provided that "
"In the event of this agreement coming to an end its is agreed that [Interlink] will take on and assume responsibility for all [NT's] staff provided for under this agreement on the same terms and conditions (including without limitation as to redundancy, pensions, and service periods). [Interlink] agrees to reimburse to [NT] any payments to staff and costs (including without limitation redundancy and pensions payments) as a consequence of this agreement coming to an end or its failure to comply with the terms of this clause" (17) NT was to ensure that the drivers provided by it had certain training and would comply with Interlink's requests for further training which was to be paid for by Interlink."
"25. In support of this contention Mr Phillips relied upon the fact that Interlink owns, maintains, insures and pays all the running costs of the vehicles; that the vehicles are painted in Interlink's livery and used exclusively in order to carry on Interlink's business by transporting goods from Interlink's franchisees to Interlink's depot at Hartlebury; that the drivers wear Interlink's uniform; that Interlink deals with such matters as the tachograph records and the reporting of vehicle defects; and that under the agreement Interlink accepts all liabilities arising from the carrying on of the business in exoneration of NT and its drivers. Mr Phillips also relied upon the fact that Interlink holds an operator's licence and has given the undertakings referred to in the licence, but I do not find these matters of assistance in deciding the issue which I have to determine. The other factors relied upon by Mr Phillips have some weight, particularly that concerning the ownership of the vehicles although, as the Ready Mixed Concrete case shows, this is not conclusive. 26. Mr Phillips relied to a considerable extent on what Denning LJ said in Denham v Midland Employers Mutual Assurance Ltd. That passage showed, he said, that the absence of specific consent by the individual drivers to a change in their employment was not fatal. Further he relied upon the description of the concept of a temporary transfer of employment as a 'device', thus giving it the air of a legal fiction. He accepted, however, that in the end the question is whether the test of control propounded in the Mersey Docks case is satisfied. 27. As to this, I accept that Interlink can, to some extent at least, give instructions to NT's drivers, as well as to its own drivers, as to how they are to drive Interlink's vehicles, particularly in respect of such matters as route and speed. But these seem to me to be comparatively minor factors in the context of this case, particularly when regard is had to the degree to which drivers are, in practice, left to choose their own routes. Much more important, as it seems to me, is the fact that NT, not Interlink, decides which of the trunking routes allocated to NT is to be driven by an individual driver and which of Interlink's vehicles that driver is to use for the purpose. The fact that changes in these respects are infrequent does not alter the fact that the relevant decisions are made by NT. I also attach considerable significance to the fact that it is NT which deals with such matters as wages, deductions from wages, holiday entitlement and discipline. There is no suggestion that these matters are attended to by NT on behalf of Interlink. They are done on its own behalf. Mr Phillips was driven to contend that each NT driver is the employee of NT when he arrives for work at the Gerrards Cross yard, becomes a temporary employee of Interlink when he gets into the driving cab of an Interlink vehicle, remains an employee of Interlink throughout the journey to Hartlebury and back, but becomes an employee of NT once more when he get out of the Interlink vehicle on return to the Garrards Cross yard. It seems to me that this represents a highly improbable analysis of the relationship of the driver to NT and Interlink respectively. Moreover it is, in my view, an analysis which is difficult to reconcile with Clause 17 of the agreement, which, by providing that Interlink will employ NT's staff if the agreements comes to an end, seems to assume that until that time the staff will be the employees of NT alone. 28. Looking at the facts of this case as a whole and bearing in mind what was said in the Mersey Docks case and the Ready Mixed Concrete case about the presumption against there having been temporary transfer of employment, I conclude that the drivers supplied by NT to Interlink under the agreement remain the employees, or in the statutory language the 'servants', of NT."
"32. For some time I thought that the solution might be found in the contention that, while the drivers supplied by NT remain at all times the servants of NT, they are the agents of Interlink while they are driving Interlink's vehicles on Interlink's business. There are, however, two main difficulties in the way of such a contention. First it does not by itself lead to the result which is sought. It is necessary to go further and to say that where a driver is the servant of A but the agent of B, only B is to be identified as the 'user' of the vehicle which the driver drives or that if both A and B are the 'user' it will suffice if one of them holds an operator's licence but the other does not. I find that this further step is not one which it is possible to take as part of the process of construing the statute. The second difficulty is that, when the question is considered rather more deeply, it does not appear to be right to regard the drivers supplied by NT as the agents of Interlink. There is certainly no contract of agency between them and Interlink. Moreover, although they have authority to drive Interlink's vehicles when told to do so by NT, they do not have any authority to carry out anything more than ministerial acts on behalf of Interlink. I bear in mind the statement of Lord Goddard in Sykes v Millington that "[A] man cannot be the servant of A and the agent of B in performing the same piece of work"
"29. During the course of the hearing I did not conceal that fact that I find this conclusion, or rather the consequences which appear to flow from it, unattractive. One would have thought that the purpose of a definition such as that contained in Section 58(2) is to enable one to identify in relation to each vehicle which is being used for the carriage of goods for reward someone who can be identified as the operator who can be required to hold an operator's licence and thus subjected to the controls and discipline which the legislation provides for. If it had been possible to identify Interlink as the 'user' of the vehicles driven by the drivers supplied by NT the result would, I should have thought, be perfectly satisfactory from the point of view of the proper regulation of road haulage, notwithstanding that the user of the vehicles and the employer of the drivers were two different persons. If the statutory definition has the effect contended for by Interlink, the resulting illegality appears to me to be of an arbitrary and technical nature, not involving anything which is inherently wrong. Unfortunately it is not open to NT to escape from the difficulty by obtaining a licence itself, for it would not be granted a licence in respect of vehicles which are mentioned in Interlink's licence. 30. The effect of the legislation, if Interlink is correct in this case, is that all the drivers used by an operator in the course of its road haulage business must be employed by that operator under a contract of service. While it is readily comprehensible that operators must be in a position to ensure that those persons whom they engage to drive their vehicles adhere to the regulations, it is not apparent to me why the engagement must be under a contract of employment. I would have thought it would be perfectly acceptable for the engagement to be under a contract for services made with, for example, a self-employed driver or an agency supplying drivers on a temporary basis without the drivers becoming employees of the operator. It would, of course, be necessary for the operator to be able to ensure that the driver complies with the regulations, but I see no reason why this result should not be achieved by a suitably framed contract for services just as well as by a contract of service. Further I do not see what is inherently objectionable in the control being exercised indirectly, through an independent contractor functioning in the same way as NT. Nevertheless none of these things is permissible if Interlink is right. 31. Prompted by thoughts of the kind described in the two preceding paragraphs I gave some encouragement to Mr Phillips to advance an argument that I should adopt a purposive construction of Section 58(2) in order to avoid these consequences. Mr Phillips, if I may say so, tried valiantly to develop these ideas. It is certainly not due to any want of effort or ingenuity on his part that I have to say that they come to nothing."
"Much of the difficulty which surrounds this subject arises out of the nineteenth century conception that a servant of a general employer may be transferred to a temporary employer so as to become for the time being the servant of the temporary employer. That conception is a very useful device to put liability on the shoulders of the one who should properly bear it, but it does not affect the contract of service itself. No contract of service can be transferred from one employer to another without the servant's consent: and this consent is not to be raised by operation of law but only by the real consent in fact of the man, express or implied: see Nokes v Doncaster Amalgamated Colleries Ltd . In none of the transfer cases which have been cited to us had the consent of the man been sought or obtained. The general employer has simply told him to go and do some particular work for the temporary employer and he has gone. The supposed transfer, when it takes place, is nothing more than a device – a very convenient and just device, mark you – to put liability on to the temporary employer; and even this device has in recent years been very much restricted in its operation. It only applies when the servant is transferred so completely that the temporary employer has the right to dictate, not only what the servant is to do, but also how he is to do it: see Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Ltd. Such a transfer rarely takes place, if ever, when a man is lent with a machine, such as a crane or a lorry: nor when a skilled man is lent so as to exercise his skill for the temporary employer. In such case the parties do not contemplate that the temporary employer shall tell the man how to manipulate his machine or to exercise his skill. But a transfer does sometimes take place in the case when an unskilled man is lent to help with labouring work: see Garrard v A.E. Southey & Co. The temporary employer can then no doubt tell the labourer how he is to do the job. The labourer becomes so much part of the organization to which he is seconded that the temporary employer is responsible for him and to him. Applying these principles to the facts found by the arbitrator, I have myself no doubt that if a third person had been injured by the negligence of Clegg in the course of his work, then Le Grands and not Eastwoods would be liable to the third person. So, also, when Clegg himself was killed Le Grands are liable to his widow on the same footing as if they were his masters and not merely as invitors. These results are achieved in law by holding that Clegg became for the time being the temporary servant of Le Grands. There is no harm in thus describing him so long as it is remembered that it is a device designed to cast liability on the temporary employer. The real basis of the liability is, however, simply this: if a temporary employer has the right to control the manner in which a labourer does his work, so as to be able to tell him the right way or the wrong way to do it, then he should be responsible when he does it in the wrong way as well as in the right way. The right of control carries with it the burden of responsibility."
"Duthies had a vehicle, they had not got a driver. A certain partnership who had a contract with Duthies had a driver and lent this driver to Duthies; there was an accident, and the curious feature of it is that one of the members of the partnership was in fact sitting in the cab with the man, his general servant, whom he had lent while the hirer of that servant, Duthies, was miles and miles away. In that case, the sheriff-substitute had held that the servant had become temporarily the servant of Duthies and the Court of Session held that they saw no reason to interfere with that decision."
"It is said, however, that Duthies did not have the right to control Rothney's method and manner of working – and that, in addition, before pro hac vice employment on their part can be established, they much be shown to have been in a position to exercise that control effectively. I am unable to agree with the latter part of that proposition and no authority to which we were referred seems to me to vouch it. In a case involving the driving of a vehicle, I have some difficulty in seeing how the effectiveness of the control which a person has a right to exercise over the driver's manner of driving can be regarded as an essential factor in deciding whether that person is the responsible employer. In many cases no such effective control exists. As Lord Simon put it in the Mersey Docks case (supra) , at page 12: "
"One has only to take the ordinary case of a person hiring a car and a driver from a garage for a day. The person who has hired the car gives his orders to the driver where he wants to be driven. It is part of the contract between the garage proprietor and the driver that the driver will drive the person who has hired the car to where that person wants to go, and the person can no doubt say to the driver: "
"The material words are: "
"There is no room in this case for the finding that either of the drivers could be treated as being a servant of the respondent for one purpose and agent of the company for another, because only one person is to be deemed to be using the vehicle, and apart from that, it seems to me that the driver, if he is the agent of anybody, is an agent for his employer. He is an agent for his employer in driving the goods for the purpose of earning the hire which the employer gets for the use of his (the driver's) services and the use of the vehicle."
"2 (1) Subject to subsection (2) and section 4, no person shall use a goods vehicle on a road for the carriage of goods - (a) for hire or reward, or (b) for or in connection with any trade or business carried on by him, except under a licence issued under this Act; and in this Act such a licence is referred to as an "operator's licence". . . . (5) A person who uses a vehicle in contravention of this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale. . . . 3 . . . (6) Except as provided in subsection (4) and subject to section 4, a person who uses a goods vehicle under a restricted licence for carrying goods for hire or reward is guilty of an offence and liable on summary conviction to a fine not exceeding£500 . (7) A person who uses a goods vehicle for carrying goods for hire or reward on international transport operations under a standard licence which covers the carriage of goods on national transport operations only is guilty of an offence and liable on summary conviction to a fine not exceeding£500 ."
"39-002 The contract of employment or of service and contracts for services. Contracts of employment were known to the law for many years as "master and servant" contracts, but this terminology now has archaic connotations, and is not found in modern legislation. There is no comprehensive definition of such a contract and the decided cases merely indicate a number of indicia or factors which are relevant to a finding that a particular contract is one of employment, or a "contract of service." . . 39-004 The modern approach to definition of the contract of employment. The traditional statements of what constitutes a contract of service placed most emphasis on the power of the employer to control the work of the employee, when contrasting that contract with a contract with an independent contractor. The traditional distinction was that whereas the employer could merely direct what work was to be done by the independent contractor, he might also direct how the work was to be done by an employee. The current approach to this distinction, and hence to the definition of the contract of employment, has four [sic] main elements: (1) the denial of the supremacy of the control test, whilst still acknowledging its importance, (2) the use of some form of "organisation" test, (3) a growing preference for asking whether the worker is "in business on his own account" - though it has been denied that this is the fundamental test, (4) the assertion that exhaustive definition is futile and that the method of classification is by the accumulation of relevant factors in each case, (5) an increasing tendency to treat the distinction as one to be applied at first instance rather than by an appellate court. . . . 39-007 Classification for particular purposes. Although, as the foregoing paragraphs show, a uniform concept of the contract of employment or service seems to be assumed in legislation and judge-made law, it is nevertheless true that the court will generally classify a relationship in the light of the particular purpose for which the classification is required, and since there is no single test to determine who is an employee it may be possible for the court to classify a particular relationship as employment for the purpose of one of the foregoing rules, but not for another. Insofar as there is a current trend, it would seem to be towards unity rather than diversity of definition, but for the possible emergence of a greater willingness to engage in a different approach to classification in the safety at work field, see the decision of the Court of Appeal in Lane v Shire Roofing Company (Oxford) Ltd . . . . 39-026 Special cases: (2) agency workers. Where, as now happens in an increasingly wide range of occupations, employment is obtained via an employment agency, radically divergent analyses of the legal relationships may occur. The worker may be held to have contracted with the agency and not with the client under whose control he is placed. In other cases, the worker may be held to have contracted with the client and merely to have received an introduction from the agency. On either view, it has then to be decided whether the worker is an employee. It has been suggested that in the case where the worker is under contract with the agency, there is a sui generis type of contract for the provision of services to a third party. It has also been held that where temporaries on the books of an employment agency were under no obligation to accept bookings offered by the employers, who in turn had no obligation to accept bookings offered by the employers, who in turn had no obligation to find work for their temporaries, the relationship between the employers and the temporaries lacked the elements of continuity and care associated with the contract of employment. Some labour-only sub-contracting arrangements are comparable to employment via an agency, and both systems can raise problems in so far as they can involve the avoidance of the ordinary legal consequences of employment under contracts of employment. For further discussion of the question whether and when an agency worker has a contract of employment either with the agency or with its client business to which the agency sends the worker, and for the assertion that there is no rule of law against there being a contract of employment either with the agency or with the client business, see now McMeechan v Secretary of State for Employment . . . ."