Employee vs Self-Employed. The distinction between whether a worker is an employee or self-employed is of great importance to determine a worker’s rights under employment law legislation. If a worker is classed as an employee, then they will have the protection of employment law legislation, including the Unfair Dismissals Act 1977. However, if a worker is classed as a self-employed contractor, they will not have the protection of the employment Acts.
The courts have shown great flexibility in determining whether a worker should be classed an employee or as a self-employed contractor. The courts will look beyond the black and white terms of a contract and look at the reality of the employment relationship. This means that artificial contracts which purport to hold workers as self-employed contractors will not be allowed stand for the purpose of circumvented employment law.
The leading case in this area is Henry Denny and Sons (Ireland) Ltd v Minister for Social Welfare [1997] IESC 9. This case dealt with the question of whether a demonstrator who offered product samples to customers in supermarkets should be considered an employee rather than a self-employed contractor.
The court highlighted the following factors are important in determining whether the relationship is in actuality an employment relationship.
· Control: The level of control which is exercised over how the work is performed. Examples of this include the use of rosters, and the worker’s ability to set their own hours.
· Equipment: Whether equipment, premises, investment, uniforms etc are provided by the worker or by the employer.
· Autonomy: whether the individual can employ others to assist with their contractual obligations, or if the obligations are personal to them.
· Finances: Whether they pay their own taxes or control expenses.
It was held in this case that the product demonstrator in question was in fact an employee rather than self-employed.
More recent cases place the emphasis on the importance of mutuality of obligations between the individual worker and the employer. In Minister for Agriculture v Barry [2009] 1 IR 215, the court held that there must be some obligations on the employer to provide work for the employee, and equally an obligation on the employee to perform the work for the employer.
The most recent reiteration on the law in this area can be found in the Court of Appeal judgment of Karshan (Midlands Limited) trading as Domino’s Pizza v The Revenue Commissioners [2022] IECA 124. This case involved the question of whether Domino’s pizza delivery drivers should be classed as self-employed contractors or employees. The Court of Appeal held that there was no mutuality of obligation between Karshan and the delivery drivers, as there was no obligation to accept work on the part of the drivers, to find substitutes if they cancelled a shift, and no sanction on drivers for not attended work shifts. The drivers were held to be self-employed.
In July 2021, the Revenue published a helpful Code of Practice on Determining Employment Status, which may be useful for determining a worker’s employment status.
Setanta Solicitors advise both employers and employees on employment law. Please contact us to schedule a no obligation consultation at info@setantasolicitors.ie or 01 215 0168
