[1] It confirmed the view, also taken by the Court of Appeal, that the relative bargaining power of the parties must be taken into account when deciding whether a person counts as an employee, to get employment rights.

Autoclenz contended that the individuals were not 'workers' for the purposes of the statutory definitions of that term in the Working Time Regulations 1998 and the National Minimum Wage Act 1998.

That was particularly so in a contract in the employment field where it was not uncommon to find that the 'employer' was in a position to dictate the written terms and the other party was obliged to sign the document or not get the work.

...  in cases where there is a dispute as to the genuineness of a written term in a contract, the focus of the enquiry must be to discover the actual legal obligations of the parties.

It matters not how many times an employer proclaims that he is engaging a man as a self-employed contractor; if he then imposes requirements on that man which are the obligations of an employee and the employee goes along with them, the true nature of the contractual relationship is that of employer and employee.Aikens LJ concurred in the result, but said that he would put the point in his own words.

There have been numerous cases where judges have had to decide whether a person has entered into or works under a contract of employment.

These obligations have been described as the ‘irreducible minimum’ to produce a contract of employment: Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 at 623 per Stephenson LJ.

Accordingly, under the valeters were employees and 'workers' as defined and were entitled both to remuneration at the rate of the national minimum wage and to paid leave.

(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.

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.

But in each case the question the court has to answer is: what contractual terms did the parties actually agree?