Classification of Employment Status The Irish Experience

Classification of Employment Status The Irish Experience Presented by: Anthony Kerr SC UCD Sutherland School of Law Date: 1 February 2024 Determining Employment Status - 1. WRC Adjudication Officer > Labor Court > High Court - 2. Deciding Officer > Social Welfare Appeals Office > High Court - 3. Revenue Inspector > Tax Appeals Commission > High Court - N.B. In National Museum of Ireland v. Minister for Social Protection (2016), Murphy J. said that it would be "far more efficient" to have one body charged with the resolution of all issues relating to employment status, but the legislature "in its wisdom" had seen fit to set up different statutory schemes to deal with different issues. Employment or Self-Employment - Persons are either employed under contracts of service or contracts for services. - There is no intermediate 'worker' status. - Agency workers are "deemed" to be employed under contracts of service. - Occasionally, contracts whereby "an individual agrees with another person personally to execute any work or service for that person" are "deemed" to be contracts of service. - What of bogus/false self-employment? Why Is This Important? - Employment Rights - Social Insurance - Taxation - Collective Bargaining Definition of False Self-Employed Worker - An individual who: (N.B. Competition (Amendment) Act 2017) • I. performs for a person under a contract the same activity or service as an employee of that other person; • ii. has a relationship of subordination in relation to that other person; • iii. is required to follow the instructions of that other person regarding the time, place and content of their work; • iv. does not share in the other person's commercial risk; • v. has no independence as regards to determination of the time schedule, place and manner of performing the tasks assigned to him/her; and • vi. forms an integral part of that other person's undertaking. Legislative Response - Opposition initiatives • Protection of Employment (Measures to Counter False Self-Employment) Bill 2018 • Prohibition of Bogus Self-Employment Bill 2018 • Prohibition of Bogus Self-Employment Bill 2019 • Organization of Working Time (Workers' Rights and Bogus Self-Employment) (Amendment) Bill 2021 - Government Position and Initiatives - "There are already robust arrangements in place for dealing complaints of bogus selfemployment" (20/2/2018), but commitments made to: • Establish a dedicated inspection team in the Department of Social Protection • Provide for Deciding Officers to make group/class determinations • Put the Code of Practice on a statutory footing • Provide anti-victimization measures for workers seeking a determination of their employment status Karshan's Theory of Mutuality of Obligation - 1. The mutual commitments in question had to present some type of ongoing continuity; - 2. They had to have a forward looking element extending into the future; - 3. There had to be an obligation on the part of the employer to provide work; and - 4. There had to be an obligation on the part of the worker to perform work. - The key feature of this theory was "future stability". The Approach of the Supreme Court - The question of whether, in any given case, a worker is an employee should be resold by reference to the following questions: • 1. Does the contract involve the exchange of wage or other renumeration for work? • 2. If so, is the contract one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer? • 3. If so, does the employer sufficient control over the worker to render the contract one that is capable of being a contract of service? • 4. If the above questions are answered in the affirmative, the decision maker must then determine whether the terms of the contract, interpreted in light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed, are consistent with it being a contract of service? • 5. Finally, is there anything in the particular legislative regime that requires the decision maker to adjust or supplement any of the foregoing? Ireland and the Platform Work Directive (PWD) - Ireland acknowledges the extensive work that the Spanish Presidency has dedicated this proposal. The PWD is an important, yet challenging file. The working party negotiations took 18 months and the agreement reached then was a delicate compromise. This meant that the trialogue mandate had to be restricted. Ireland has attempted to approach these negotiations in a constructive manner. However, it is to be borne in mind that the result is a piece of legislation that will bind all member states. The legislation must be deliverable and proportionate to its objectives. - Ireland had a few concerns, along with many of the Member States, with the provisional agreement. While Ireland can agree to a low threshold for the triggering of a legal presumption, the introduction of new 'indicators' was significantly broader than the 'criteria' agreed in the Council General Agreement. Concerns have also arisen [that] the proposal undermines the reality that Platforms also legitimately facilitate the work of those who are genuinely self-employed. Ireland will continue to work constructively with the Belgian Presidency with a view to addressing areas of concern and in the hope agreement between the co-legislators can be reached.