Employment law:
No longer than 2,500- includes footnotes, not bibliography
Size 12, double line spacing
The question whether a particular working arrangement is an employment relation has
posed huge problems to the courts. Discuss how judges in both Ireland and the UK have
approached this question, and whether you think Irish employment law on this subject is
satisfactory.
Also offer any recommendations you may have for improving the law in this area.
It is correct to say that whether a particular working arrangement is an employment
relationship has been problematic for the courts. To back up this statement successfully,
the approach taken by both Ireland and UK judges must be analysed precisely, alongside
with some key cases to highlight the different approaches taken. Following this, whether
Irish employment law is satisfactory or not when it comes to this area will be developed on,
in order to shine light on what is missing in this area of law, for the purpose of allowing for
recommendations to be made at the end of this essay.
The question of whether a worker is an independent contractor or an employee has been a
major obstacle for the courts in recent years. The difference between both of these is quite
significant. Many Irish employment legislation lay out the meaning of an employee, in which
they are regarded to as people who have entered ‘into or work under a contract of
employment’, as stated in the Terms of Employment (Information) Act, 1994. What exactly a
contract of employment is further clarified by this act, in which it states that it is a contract
of service or apprenticeship any other contract whereby an individual agrees with another
person, who is carrying on the business of an employment agency within the meaning of
the Employment Agency Act, 1971, and is acting in the course of that business, to do or
perform personally any work or service for a third person.
There have been a few common law tests which have been developed over the years by the
courts in order to aid them with determining if there is an employment relationship present
or not. These tests manage to point out if one is an employee or an independent contractor
due to the fact that employment relationships are created only when one is an employee,
there is no employment relationship for an independent contractor.
The first test to be developed in order to detect an employment relationship was the control
test. This test sought to identify the existence of an employer’s right to control the
individual to such a degree to make the individual the servant of the master. It was effective
when the relationship existed between the servant and his master, the master told the
servant what to do and the servant did it.
https://webjcli.org/index.php/webjcli/article/view/223/363#_Toc364702240
The control test was first established in the case of Yewen v Noakes (1880) 6 QBD 530. This
case came about due to the fact that a master who had a clerk and his family living with him
wanted to claim certain statutory exemptions, however it was determined that since the
master did not tell the clerk how to do his work, or in other words ‘control’ him, because he
was skilled enough to do the work on his own behalf, the legislation granting the statutory
exemption did not apply in this case, meaning that he was also not a servant. Bramwell, L.J.
stated in this case that ‘a servant is a person subject to the command of his master as to the
manner in which he shall do his work’.
The control test which was established in the case of Yewen v Noakes (1880) in the UK was
soon adopted in the Irish courts in the case of Roche v Kelly (1969). This case came about
due to the fact that the plaintiff fell from scaffolding during the construction of the
a barn, which he was contracted to build by the defendant, and suffered personal injuries,
after which he claimed for a breach of statutory duty. In the judgement delivered by Walsh
J, it is stated that there was enough evidence to prove that the plaintiff was an independent
contractor, and that ‘while many ingredients may be present in the relationship of master
and servant, it is undoubtedly true that the principal one, and almost invariably the
determining one, is the fact of the master's right to direct the servant not merely as to what
is to be done but as to how it is to be done’. In summary, an employer must tell employee
what to do and how to do it, and once these two elements are present then there is an
employment relationship present.
The problem with this test was that the expansion of technical skilled labour that grew
during the 20th century and caused the decline of traditional employee and master control
and monitoring over labour was not reflected in this test. A person who works under a
contract for services can be informed what to complete by his principal but not how to carry
out what he or she is to accomplish, hence this test is not well adapted to contemporary
industrial relations where a class of so-called professional employees, such as lecturers, has
emerged.
Lecturers- Cahill v DCU
Nyombi, C. (2015), "A response to the challenges posed by the binary divide between employee and
self-employed", International Journal of Law and Management, Vol. 57 No. 1, pp. 3-16. https://doi-
org.may.idm.oclc.org/10.1108/IJLMA-03-2013-0012
Write about how although control is not a decisive matter, and that it is quite problematic, it
being present is still important/used to determine whether employment status is present-
O’ Keefe v Hickey [2009] SC.
Integration(organisation) test:
Stevenson Jordan & Harrison Ltd v MacDonald & Evans [1952]
For you to be an employee the work you're doing for the company must be a core part of that
business- if it is not imbedded in the business then you are likely to be an independent contractor
Problem: how do you know that if the work done is a significant part of the business
Beloff v Pressdram Ltd [1973] Chancery Division- journalist brought claim to prevent orders from
using the information, court claimed that her job as a journalist and the fact that she was an
important part of the business, she is an employee, which means that the information she gives
belongs to the newspaper not her
if you have a lot of skilled employees then the control test is not that important
Ireland- Re Sunday Tribune: HC [1984] - Re Sunday: application of integration test in Ireland
If you are an employee in business which goes into liquidation, you get priority
Control is not a significant test when dealing with many skilled employees
Others working full time and writing frequently was found under integration, third not found to be
employee under any test, one found under control
Integration test critiques:
Economic reality test
Market Investigations Ltd v Minister of Social Security [1969] 2 W.L.R. 1
Are they engaged by another person to perform the service or are they carrying out the services on
their own account
(i) whether the man performing services provides his own equipment
(ii) whether he has his own helpers
(iii) whether he takes some financial risk
(iv) whether he has invested in the business/managing it
(v) whether he has opportunity to reap profits if he manages the business or performs the task well
Had been hired to carry out interviews with other people, given strict instructions of how to conduct
interviews, paid for how many days they worked but also free to work other people
Issue under NIA of whether he was employee or not
Determined that they were an employee for the purposes of the NIA
Test to be applied: if they are performing service under own account then they are an independent
contractor
Inspector of taxes (O’ Coindealbhain) v Mooney [1990]: HC applied test
Keane j repeated what was said in the investigations case- look at the factors to determine whether
person is employee or independent contractor
Henry Denny v Minister for Social Welfare [1998]
The case of Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34 is
one which better explains what an independent contractor is. This came about due to the
fact that clarity was needed regarding whether demonstrators offering free samples of
items were to be regarded as either ‘being engaged in their tasks under a "contract of
service" or a "contract for services"’. It is in this case that the Irish courts referred back to
the English case of Market Investigations Limited v. Minister of Social Security, in which the
question of whether “the person who has engaged himself to perform these services
performing them as a person in business on his own account” came about, and if they have,
then the contract in question would be considered to be a contract for service, which is
distinct to the contract of service which employees have.
Mutuality of obligation test- Recently in Ireland there has been many judicial decisions where mutual
obligation is looked at
Minister for Agriculture v Barry [2017]
Edwards: must be mutuality of obligation, first thing that must be checked in contract of
employment
Brightwater selection v Minister for Social and FA [2011] and Ahkta Mansoor v Minister for Justice
[2010]
proof that mutuality of obligation is the minimum of contract of services, if it does not exist then
there is not contract of employment
McKayed v Forbidden City Ltd [2016]- Look at highwater to prove that there has to be mutual
obligation in a relationship as the company did not guarantee that he would work continuously
Mutuality of obligation- what it is https://www.davidsonmorris.com/mutuality-of-obligation/
No determinative factor- None of these elements alone can make a decision. When determining the
proper job status of a worker, it is important to consider each of them and give them a fair amount
of consideration. https://www.revenue.ie/en/self-assessment-and-self-employment/documents/
code-of-practice-on-employment-status.pdf
Conclusion of all tests: McKayed: No one clear test which the decision maker can look at which can
help them determine who is an employee and who is not
Thus, Control, integration, mixed test, economic reality, and mutuality of obligation all have a role to
play
Now that the tests used by both the courts in the UK and Ireland have been discussed,
platform work will be examined in order to further develop the point that whether a
particular working arrangement is an employment relation has posed huge problems to the
courts. Platform work is a type of employment that makes use of a platform to connect
businesses or individuals with other businesses or persons in order to solve certain
problems or offer particular services in exchange for remuneration.
http://tankona.free.fr/wpef18004.pdf
Since it first appeared in the EU, platform work has expanded quickly, although concerns
have been expressed regarding its working conditions and the potential for precariousness.
Therefore, platform work has been deemed a priority for policy by European decision-
makers.
https://www.europarl.europa.eu/RegData/etudes/STUD/2020/652734/
IPOL_STU(2020)652734_EN.pdf
There are a not that many cases at the moment involving platform workers, especially in the
UK and Ireland, however, these are still sufficient for highlighting how judges in these two
different jurisdictions have dealt with this question.
The first case that will be analysed is the case of Uber v Aslam. This case came about due to
the fact that The Employment Appeal Tribunal was obliged to decide whether Uber drivers
in London met the definition of a worker (as determined by the tribunal) or whether, as
claimed by Uber, each driver owns a separate business to which Uber acts as an agent. This
is because. Uber asserted that because the plaintiffs were not considered "workers," they
were not covered by employment law's protections.
https://www.fitzgeraldhr.co.uk/uber-bv-and-others-v-aslam-and-others-supreme-court-
judgment - last line
https://www.eurofound.europa.eu/data/platform-economy/records/judgment-in-uber-v-
aslam-farrar-dawson-and-others-ukeat005617da -judgement link
The definition of the term worker was laid out in part 34 of the judgement. In this, it
referred to section 230(3) of the Employment Rights Act 1996, which stated that the term
“worker” meant: a person who has entered into or works under (a) a contract of
employment, or (b) any other contract, whether it be express or implied, by which the
person undertakes to do or perform personally any work or services for another party to the
contract whose status is not by virtue of the contract that of a client or customer of any
profession or business undertaking carried on by the individual. Compared to the term
"employee," "worker" encompasses a broader spectrum of persons, but it does not confer
the same level of rights.
https://cilexlawschool.ac.uk/wp-content/uploads/2019/09/HQ04-Employment-Law-Sample-2019.pdf
Part 39 of the judgement depicted clearly that the employment tribunal had decided to
regard to the claimants in question as “workers” who, despite the fact that they were not
employed under a contract of employment, they still worked for Uber London under a
“workers’ contract” within the context of limb (b) of the statutory definition present in
section 230(3) of the Employment Rights Act 1996, so therefore, they were not considered
to be independent contractors.t
https://www.supremecourt.uk/cases/docs/uksc-2019-0029-judgment.pdf
The main five reasons as to why the tribunal found the drivers to be workers were given in
parts 94 to 101 of the judgement. The reasons were as follows: Uber sets the remuneration
received by the drivers for the work they do. They also set the terms of the contract under
which drivers perform their service. Uber exercises control in two different ways, which are
that once a driver logs onto the Uber app, Uber limits their ability to decide whether or not
to accept ride requests and that the driver’s rate of acceptance of trip requests is also
monitored by Uber. They also have considerable control over the manner in which drivers
provide their services, by vetting the types of cars that may be used by the drivers. Lastly,
Uber restricts communication between passengers and drivers to the bare minimum
required to complete the specific journey and proactively strives to prevent drivers from
forming any kind of relationship with passengers that could last longer than a single ride.
The second UK case which concerns platform workers is the case of Independent Workers
Union of Great Britain (IWGB) v Central Arbitration Committee and Roofoods/ Deliveroo
(2021). This case developed, as stated in part 1 of the judgement, as a result of collective
bargaining rights in respect of Deliveroo riders, as the 1992 Act did not recognize the drivers
as "workers" because the terms of their employment allowed for the use of substitutes
rather than requiring them to perform their duties themselves. The drivers argued that
CAC’s refusal was against Article 11 of the ECHR (freedom of assembly and association),
which grants the ability to join trade unions. Part 6 of the judgement lays out how for one to
be considered as a limb (b) worker under the 1992 Act, it is essential that ‘the worker should
agree to perform work or services “personally” for the other party.’ This means that if
express terms of a contract in question allows the worker to provide the work or service
through someone else, such as substitution in this case, that requirement is not met.
However, a new contract was made a few weeks before the hearing, altering the provisions
which allowed for riders to use substitutes which were included in the old contract. Part 17
of the judgement lays out this exact provision found in the new contract, referred to as
clause 8, which declares that a driver has the right, without being required to obtain
Deliveroo’s approval beforehand, to get another courier to provide the services on their
behalf. Due to these reasons, the court found that the riders do not fall within the scope of
Article 11, meaning that they are to be considered as independent contractors.
In relation to both of these UK cases, the reason as to why they both have different rulings is
due to the fact that Uber did not involve any issues with Article 11 of the ECHR, and it also
failed to rely on any substitution clause (para 84 of Deliveroo judgement). Instead, that case
focused on the drivers’ rights and whether they were protected under employment law.
Karshan v Revenue Commissioners [2022] IECA 124:
Costello J:
The only Irish case in existing which involves platform workers is the case of Karshan v
Revenue Commissioners [2022]. The case came about due to the question of whether
Domino’s delivery drivers are to be considered as employees or independent contractors, for
tax purposes.
In examining the previous decision which was taken by the Revenue Commissioner, Costello
J, delivering the majority decision, precisely depicted all of the areas in which the
Commissioner erred in determining that the Domino’s delivery drivers were to be considered
as employees working under a contract of service. In part 64 of the judgement, it is stated
that the Commissioner did not address certain crucial authorities, such as Mansoor, McKayed
and Brightwater, in any detail, all of which make it abundantly evident that there must be an
obligation to execute the job on one party and a duty to deliver the labour on another party
in order for there to be mutuality of obligation. The judgement went further to say in part 75
that the commissioner fell into error in concluding that the mutuality of obligation test was
satisfied in this case due to the fact that she erred in her construction of the contract. This
occurred mainly because she relied heavily on the case of Weight Watchers, which was not as
suitable in this case due to the difference between the facts of both cases. The written
agreement was also misinterpreted, which meant, as stated in part 76 of the judgement, that
the written agreement did not obligate the drivers to work and therefore they were
not required to initiate an agreement with the appellant. Also, the conclusions regarding
substitution and integration which were made in this judgement are not reflective of the
employment status of the drivers because there is no mutuality of obligation between them
and the appellant (120). In essence, the possibility of the drivers being employed under a
contract of employment was ruled out. (117)
It is correct to say that similar justifications as applied in England will not be applied in this State as
of yet. As stated in part 87 of the judgement, it is critical to note that different authorities, such as
English ones in this example, should only be used sparingly in the Irish context. England relies heavily
on statutes in order to get a better understanding about whether one is to be considered a
“worker”, which is a middle level category which does not exist in the Irish context. The ruling has
granted companies in the Irish gig economy significant leeway, in that delivery drivers will continue
to be independent contractors rather than PAYE employees. https://www.lawlibrary.ie/the-future-of-the-gig-
project-economy-karshan-v-revenue-commissioners-2/
Is irish employment law satisfactory?
Irish employment law is currently very much in a binary state. According to a contract for services, a
person is either an employee or a self-employed contractor. The Irish judiciary, which is required to
hold that if a person is not an employee, then they can only be an independent contractor, is not to
blame for the binary stance in Irish employment law. Workers in the gig economy do not fit the
standard definition of an employee because they have the freedom to decide when and where they
work as well as to work concurrently for multiple, frequently rival, parties.
https://michaelodohertybl.com/the-employment-status-of-gig-economy-workers-in-ireland/
Recommendations:
Two recommendations which can be made regarding platform workers in Ireland area are that firstly,
'intermediate' categories of workers should be looked at, such as limb (b) workers in England.
Secondly, protections should be extended to those who are self-employed, due to the fact that the
difference in the level of protection one gets if they are employed instead of self-employed is
extremely large, so it should be attempted for the gap to be filled.
Michael Doherty article Maynooth University
EU:
Main para:
On the 9th December 2021, a series of initiatives were put out by the European Commission to
enhance platform workers' working conditions and promote the EU's long-term expansion of digital
labour platforms. The most important thing which the Commission put forward in this was a proposal
for a directive. This directive's aim is to improve working conditions in platform work. The directive
has three main components, which includes: employment status, algorithmic management and
enforcement, transparency and traceability. It can be said with great confidence that the employment
status section is the most important one. This intends to make sure that people who are working
through digital labour platforms will be granted with legal employment status which will be
equivalent to the work they do. Along with this will come their right to collective bargaining, the right
to paid leave or enhanced access to protection against work accidents, the minimum wage, working
time and health protection, unemployment and illness benefits, and lastly contributory old-age
pensions.
https://ec.europa.eu/commission/presscorner/detail/en/ip_21_6605
This is a reflection of the exploding popularity of platform or "gig" work in recent years across a
variety of industries and the growing demand for stronger legal protections for workers in the sector.
https://www.mccannfitzgerald.com/knowledge/employment/directive-on-working-in-
platform-economy-on-the-horizon
