Image credit: Employment Law, Los Angeles
By Mweemba Chuulu & Danny Mulenga
22nd April, 2026.
Introduction
The contract of employment remains the cornerstone of Employment Law, defining the legal relationship between employer and employee and determining the scope of rights, duties, and protections available to each party. Despite its importance, the concept has proven difficult to define with precision, particularly in jurisdictions where legislation provides no express definition. As a result, its meaning has largely been shaped by judicial development and academic commentary.
At the centre of this discourse lies a fundamental tension: whether the contract of employment is truly a voluntary agreement between equals or a legal construct masking an inherently unequal relationship. This tension is most forcefully articulated by Otto Kahn-Freund.
Kahn-Freund’s Conception of the Employment Relationship
Kahn-Freund observed:
“The relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception, it is an act of submission; in its operation, it is a condition of subordination. However much the submission and subordination is concealed by that indispensable figment of the legal mind known as the contract of employment.”
This statement highlights the unequal nature of the employment relationship. At formation, the employee submits to the employer’s terms due to weaker bargaining power and in the operation of the contract, the employee remains subordinate to the employer’s authority and control. The net effect of this is that although the law presents the contract of employment as a voluntary agreement between equals, it in reality conceals the relationship of submission and subordination. The concept masks the inherent inequality of bargaining power between the employer and the employee.
The Legal Significance of the Distinction
The distinction between a contract of employment and a contract for services carries significant legal consequences. It determines access to statutory protection in that protective labour legislation protects only those under a contract of employment as envisaged in Section 3 of the Employment Code Act No. 3 of 2019, also for the imposition of vicarious liability, and obligations relating to taxation and social security. It also governs entitlement to benefits.
The Control Test: A Product of Feudal Thinking
The earliest judicial approach to determining a contract of employment was the control test. In the case of Collins v Hertfordshire (1947) KB 598, the court identified a contract of service from a contract for services by holding that the former is one where the employer cannot only direct the person what work to carry out but also the manner to carry out the work directed where as a contract for services is one where the person is hired to perform certain tasks but maintains control over the manner in which to perform the act. It is however of critical importance to note from the onset that this test was coined in feudal times when ownership of the means of production also implied possession of the knowledge necessary to direct labour. In such circumstances, employers exercised control over both the nature and manner of work, making the test suitable for rudimentary relationships such as those between a labourer and a farmer or a domestic worker and a householder.
However, modern developments have rendered the test increasingly inadequate. In contemporary employment, many workers possess specialised skills and exercise independent judgment in performing their duties. While the employer may direct what is to be done, the manner of performance is often left to the worker. This is illustrated in a plethora of cases, for example, in a situation involving journalists as espoused in Re Sunday Tribune [1984] IR 505, doctors in O’Friel v St Michael’s Hospital (1990) IRM 260, and lecturers in Cahill v Dublin City University (2007) ELR 113.
In Beloff v Pressdram (1973) 1 All ER, the court noted that the close supervision implicit in the control test is somewhat anachronistic in contemporary employment. Similarly, in Cassidy v Ministry of Health (1951) 2KB 598, the court held that control is not universally determinative, acknowledging that many employees perform work beyond the direct control of the employer.
The inadequacy of this test necessitated the development of more flexible approaches.
The Integration Test: Organisational Attachment
The business integration or organisational test emerged in the 1940s to address the shortcomings of the control test, particularly in relation to skilled and professional workers who operate with a high degree of independence. Instead of focusing on control, the test examines whether a worker is integrated into the employer’s business or merely provides services from outside it.
This approach was articulated in Stevenson, Jordan and Harrison Ltd v MacDonald and Evans [1952] 1 TLR 101, where Lord Denning emphasized that an employee is “part and parcel” of the organisation, whereas an independent contractor remains an accessory to it.
The strength of this test lies in its recognition of modern work realities, where control is no longer a reliable indicator of employment, especially for highly skilled individuals. By focusing on integration, it captures the structural relationship between the worker and the business, making it a more realistic and flexible approach than its predecessor.
However, its persuasive force is undermined by its vagueness, as courts have failed to clearly define what constitutes “integration,” leading to inconsistency in its application. More critically, the test can produce misleading results. A worker may be deeply integrated into a business and still be an independent contractor, while others who are not part of the core function, such as support staff, are undeniably employees. The rise of outsourcing further exposes this weakness, as many workers appear integrated in practice but remain legally external.
For this reason, although the integration test marked a significant doctrinal improvement, it is ultimately insufficient as a decisive test, reinforcing the need for a broader, multifactorial approach.
The Multiple Test: The Prevailing Approach
The inadequacies of single-factor tests led to the adoption of the multiple or mixed test, which examines the totality of the relationship. The guiding principle was articulated in Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173, where the court asked whether the worker is in business on their own account and if answered in the affirmative, then there exists a contract for service and if no then it is a contract ofservice.
This approach was further refined in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1967] 2 QB 947, where the identified essential elements of a contract of employment, including the provision of work and skill by the employee return for remuneration. Secondly, the employee agrees either expressly or impliedly that he shall be subject to the control of the master in the performance of his duties and lastly, that the other provisions are consistent with a contract of employment, this means that all other terms in the agreement must align with and reflect the legal characteristics of an employment relationship, and must not contradict or undermine the existence of a contract of employment.
Additional elements were identified in Short v W Henderson Ltd (1946 TLR 427) including the employer’s power of selection of his workers, payment of wages, control of the mode of work, and the employer’s power to discipline workers.
Conclusion
The contract of employment remains a central yet contested concept in employment Law. While it provides a necessary legal framework, it also conceals the inequality inherent in the employment relationship, as observed by Otto Kahn-Freund.
The evolution from the control test, rooted in feudal conditions, to the integration and multiple tests reflects the law’s attempt to adapt to changing economic realities. However, no single test has provided a definitive solution. The determination of employment status remains a nuanced and fact-sensitive inquiry.
Ultimately, the contract of employment must be understood not merely as a formal agreement, but as a dynamic legal instrument shaped by power, dependency, and the continuing need for protection in the modern workplace.
ABOUT THE AUTHORS
Mweemba Chuulu is a third-year Law student at The University of Zambia.
He is an author at Amulufeblog.com.
He writes in his personal capacity.
Danny Mulenga is a third-year Law student at The University of Zambia.
He writes this in his personal capacity.
DISCLAIMER
The views expressed in this article are solely mine and do not represent any organisation with which I am affiliated.
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