Complainant

Respondent

Parties

Beta Bajgart

Radio Telefís Éireann

Representatives

Michael O’Doherty BL

Louise O’Byrne, Arthur Cox Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00061781-001

26/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00061781-002

26/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00061781-003

26/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061781-004

26/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061781-005

26/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061781-006

26/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061781-007

26/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00061781-008

26/02/2024

From June 2011 until December 2023, the complainant was the stills photographer on the set of the RTÉ production, “Fair City.”  In her submission in advance of the hearing, she stated that her role involved taking and editing promotional still photographs of the show for publication in a range of print, broadcast and digital media outlets.  She was expected to complete her work personally at all times.  Each week, she was directed by a press officer concerning the type of photographs to be taken.  She submitted 16 selected photos to an online gallery from where they were downloaded by the press office, who created press packs for media to send to publications.

In September 2023, arising from the scrutiny of RTÉ’s finances by the Oireachtas Committee on Public Accounts, attention was drawn to the complainant’s role and she suffered some negative commentary regarding her skills and the amount she was paid.  On November 15th 2023, her solicitors wrote to RTÉ and claimed that she was an employee “to whom a contract of indefinite duration has long since accrued.”  The director of human resources replied on December 7th and set out RTÉ’s position that, having tendered for the work, the complainant’s contract was “not an employment relationship but one of a supplier of services.”  The complainant did not tender for the work when a tender was advertised in the autumn of 2023 and she claims that her employment with the respondent was terminated without notice on December 15th 2023. 

History of the Contractual Relationship

The complainant has a qualification in fashion photography and between 2005 and 2011, she was the in-house photographer for VIP Magazine.  In 2010, while she worked for VIP, she was contracted by the respondent for two eight-week periods as the photographer on the RTÉ fashion programme, “Off the Rails.”  From June 6th 2011 until May 31st 2012, the complainant was engaged as an independent contractor as the stills photographer on Fair City.  This contract had an option to be renewed for 12 months, but it was renewed until June 2014.  The rate of pay for the work was set at €750 per week.

On May 14th 2014, a request for tender for the job of stills photographer on Fair City was publicly advertised by the respondent.  The complainant submitted a tender on May 30th.  From June 1st until August 31st, she was engaged to cover the period of the tender process.  Of the four applicants, the complainant was successful and she was awarded the tender at her requested price of €900 per week.  The contract was from October 14th 2014 for a period of two years.  This contract was extended by mutual agreement for one year in October 2016, and again in October 2017, bringing the complainant’s service under that contract to October 14th 2018.

The complainant was awarded another contract on January 21st 2019 which ran until June 4th 2019, when the contract was put out for tender again.  This time, she was one of two applicants and she was awarded the contract for three years commencing on September 1st 2019 at a rate of €980 per week.  On September 6th 2023, a new tender was advertised.  I note from the respondent’s website that applicants were required to submit a price for the work up to a maximum of €60,000 per year for being on the set for an average of three days per week for 20 hours each week.  The complainant did not respond to this tender and there were no other applications either.  She was offered an extension to her contract while the tender process was under way.  When it was advertised again in November and December 2023, the complainant did not apply.  The December 2023 tender process resulted in the establishment of a panel of four photographers.  The complainant ceased carrying out the job of stills photographer on Fair City on December 15th 2023. 

Direct Evidence

Mr O’Doherty asked the complainant about the respondent’s contention that, in 2010, while she worked for VIP Magazine, she was also engaged as a fashion photographer on Off the Rails.  The complainant replied that she was employed directly by VIP Magazine for three days per week and that she also did other work.  She worked for a half a day a week at the time for Off the Rails.  She said that the programme ran for about eight episodes and she worked for those eight weeks.

The complainant referred to her first fixed-term contract with the respondent from June 2011, a copy of which was included in her book of documents.  She said that she was interviewed for this job and then she got the contract.  There was no discussion about the legal implications.  She said that she set the rate for the work, based on her previous work with Off the Rails.  She said that the rate was adequate for the contract, which was intended to be for one year, but which was extended until June 2014.  She said that she doesn’t remember the number of extension letters she received, she just got them, with no change to the terms of the initial contract.

In 2014, the complainant said that she was awarded a new contract arising from a tender process.  She said that she was informed that a new contract was available and she was invited to enter the tender process.  She said that there was no other way of applying for the job.

Mr O’Doherty asked the complainant what she thought about the tender process asking her to be engaged as an independent contractor.  The complainant replied that she had no legal knowledge and she wanted to keep working.

Mr O’Doherty referred to the fact that the contract offered on foot of the May 2014 tender process was for two years, with an option to renew for one year on two occasions.  That brought the complainant’s engagement with the respondent to October 14th 2018.  Between October 14th 2018 and January 21st 2019, the complainant had no contract.  In response, the complainant said that she simply continued to work and she got paid.  She was awarded a contract in January 2019 until June 2019 when the work was put out to tender again.  She was awarded a contract until September 2019 while the tender process was under way.  She was then awarded a contract for three years, ending in September 2023.  She didn’t apply in response to the new tender.

The complainant said that colleagues in RTÉ were disputing their contracts.  She said that she thought that she was in a similar situation to them.  Between September and December 2023, she asked Setanta Solicitors to examine her contract.  She didn’t stop working when her contract expired on September 1st 2023 and she continued to work arising from an extension letter issued around November 2023. 

In response to a question about the working arrangements between her and the respondent, the complainant said that she worked for 50 weeks a year.  She said that Fair City isn’t produced for two weeks around Christmas.

Filming on Fair City runs for four days a week.  From 2011, the complainant said that she has worked continuously for three days every week.  The photographs she took were used to promote the programme.  She said that her contract stipulates that she is required to work for a maximum of 20 hours, but she said that the reality is different, and she could work for 30 hours.  She said that she came in in the morning and had a list of shots to take.  She asked the floor manager when she could take the photographs and sometimes, she had to wait until a scene was finished.

A production may be delayed or changed and the complainant said that she had no control over these issues.  She said that she was given clear and specific instructions about what photos to take.  She said that she was given a shot list every Thursday for the following week, with details of the times of the scenes and a description of what the press office wanted.  She said that her hours and days were set by the press officer, who was effectively, her manager.

Between June 2011 and December 2023, the complainant said that there was no time when she wasn’t working for RTÉ.

Mr O’Doherty asked the complainant about how her pay was decided in 2011.  She replied that she thinks there was a discussion about pay, based on her previous fee.  She said that she negotiated a weekly fixed fee that “we were both happy with.”  She said that she had no control over the fee in the course of her employment and no way that she could make any more money. 

The complainant took between 30 and 50 photographs and selected 16 sharp photographs for uploading every week.  She chose the pictures that met the requirements of the press office.  She said that this was the most consuming part of her job, putting meta-data into each file so that when a journalist opens a photo they can see when it can be published and who is featured.  The meta-data was provided by RTÉ.  The complainant said that she spent about three to four hours each week editing, sometimes in RTÉ and sometimes at home.  The minimum requirement was 16 photographs, but she generally provided between 16 and 25.

Mr O’Doherty asked the complainant if she consented to doing the job as an independent contractor.  The complainant replied, “I wanted the job.”  She said it was never offered to her as an employee.

Cross-examining of the Complainant by Ms O’Byrne

The complainant agreed with Ms O’Byrne that she worked for VIP Magazine from 2005 and that she was paid a salary.  In 2010, she also worked for RTÉ, as a photographer on Off the Rails.  She said that she did the Off the Rails work on a freelance basis. 

Ms O’Byrne asked the complainant if she differentiated between being an employee and being a “freelancer” and she replied that she understood the concept of “freelancer.”  She agreed with Ms O’Byrne that applying for the job as a freelancer was the only way to get the job.

Ms O’Byrne referred to the complainant’s application dated May 30th 2014 to tender for the job of stills photographer on Fair City.  Ms O’Byrne remarked that the application was very professional.  The complainant said that she set up her email, beta@betaphotographer.com in 2009.  She also set up a website, betaphotographer.com, for the purpose of displaying her photos.  She said that her objective was to show her photos to people who might give her work.  She said that she doesn’t remember when she set up the website, but that it was before she sent in the application for the tender in 2014. 

Ms O’Byrne remarked that the tender application is a very comprehensive document.  The complainant said that she drafted her document in response to the tender.

The complainant said that she provided the work for 50 weeks of the year.  She said that she was physically on the set for 47 weeks, apart from when she or her children were sick.  If she couldn’t attend, she was required to find a replacement who was approved by RTÉ.

In relation to equipment, the complainant said that she submitted information about the equipment that she owned, and that she was not instructed what brand of camera to use.  She said that she used a professional camera.

Before she was awarded the contract, the complainant said that she looked for public and products liability insurance and she was required to submit evidence of this with the tender application.

The complainant said that she has used a firm of accountants since she worked for VIP Magazine in 2010.  Ms O’Byrne referred to a profit and loss summary for 2011 which was included in the respondent’s documents.  Referring to the figures for expenses, the complainant said that she gave these figures to her accountant.  She claimed motor and travel expenses for driving to work and telephone, computer and stationary costs.  She said that she didn’t do this when she was working with VIP Magazine.  She said that increases in income and expenses represent a growing business.

Ms O’Byrne referred to the complainant’s hours of work on the set of Fair City.  She asked her about her statement that she worked for 30 hours, when her contract stipulated that she was required to work for 20 hours.  The complainant said that, although she was required to submit 16 photos each week, she might take up to 50 photos to achieve 16 quality pictures.  She might have to submit a variation of the same scene.  She said that she submitted the photos that were in focus and in which the actors looked good.  If something was particularly attractive, she said that she would submit that also.

The complainant said that she had a desk in the office of the production of Fair City and sometimes she was told to produce the photographs very quickly.

Ms O’Byrne asked the complainant about when she tendered for the work for the second time, in September 2019, when she increased her fee.  The complainant said that she wanted the work and she knew that she was expected to charge a certain fee.  She said that she couldn’t increase it too much and, after speaking with colleagues, she reached the assumption that the amount that she put in the tender document, €980 per week, would be accepted.

Ms O’Byrne asked the complainant if she was also operating as a freelance photographer while she worked on Fair City.  She said that she operated her freelance business around the shot list that she got from Fair City every Thursday.  She said that it was difficult to look for clients in advance because she never knew what day she had to work for RTÉ.  She agreed with Ms O’Byrne that she didn’t work most Mondays, but she said that for five weeks of the year, filming was done on Mondays.  Filming was also done on some weekends.

The complainant said that the fees for her freelance work were different to the fee she charged RTÉ.  She said that she is more aware of what she can charge.  If she got a job to photograph products, she said that she can plan the work.  She can plan head shots and fashion shots in advance.  She said that she has a lot of freedom with this work, and she can also refuse the work.

The complainant said that she had a limited panel of photographers to provide cover if she couldn’t attend the set.

The complainant agreed that she wasn’t paid for annual leave, public holidays, sick pay or pension and that she had no access to facilities such as the gym. 

Ms O’Byrne referred to the events of September 2023, when the complainant was the subject of some publicity about her work and the cost of her services.  She agreed that she gave some interviews and she wrote to Senator Micheál Carrigy to object to the opinions he expressed at the Oireachtas Committee on Media, Tourism, Arts, Culture and Sport.  The complainant agreed that in her letter to Mr Carrigy, she described herself as an independent contractor.  She said that she wanted to be politically correct and to respect RTÉ.  She said that she didn’t want to “rock the boat.”

Re-direction by Mr O’Doherty

In response to further questions from Mr O’Doherty, the complainant said that, when she worked for VIP Magazine, she did freelance work for RTÉ.  She worked according to the same process, by taking a lot of photographs and whittling them down to the most useful.

The complainant said that she set up her own company in 2024.  She has no office and no employees or assistants.

In the tender document for the work on Fair City, there is a provision that the work can’t be disrupted.  The term “sub-contractor” is used to describe the people who provided cover when the complainant couldn’t work.  She said that instead of “sub-contractor,” she used the word, “assistants.”  She said that assistants could be asked to cover for her for three or four weeks a year.  She said that she paid two people who provided this cover.

Questions from the Adjudicator

Before she finished her evidence, I asked the complainant about the fact that she submitted a tender for the work on Fair City for a second time in September 2019.  I asked her when she became an employee.  She replied that she was an employee in 2011, but that she had no legal knowledge.  She said that she wasn’t in a position “to go to RTÉ.”  In 2023, when her colleagues disputed their independent contractor status, she said that she decided to do something.

I asked the complainant why she didn’t submit a new tender for the work in 2023, and she said that she was advised by her solicitors not to do so.

The Decision of the Supreme Court in The Revenue Commissioners v Karshan

Considering the question of the complainant’s employment status, both sides referred to the importance of the decision of the Supreme Court in October 2023 in The Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza[1] (“Karshan”).  The complainant relies on the outcome of that judgement, and claims that she can meet the five steps of the framework established by Mr Justice Murray to show that she was an employee of RTÉ.  The respondent takes a more nuanced approach and relies more heavily on the Code of Practice on Determining Employment Status which was updated in the wake of Karshan by an interdepartmental group comprising the Department of Social Protection, the Revenue Commissioners and the WRC. 

Before moving to the application of the framework test to the complainant’s circumstances, it’s useful to look back over the evolution of that case between 2014 and 2023.  We know that, in 2014, the Revenue Commissioners determined that drivers delivering pizzas for Dominos were employees for tax and social insurance purposes, despite their contracts describing them as independent contractors.  When this decision was upheld by the Taxes Appeal Commissioner, Karshan appealed to the High Court.

The High Court upheld the decision of the Taxes Appeal Commissioner, finding that she had not erred in her conclusion that a mutuality of obligation existed between the delivery drivers and the company.  She had found that this mutuality of obligation was present even though the contract might comprise just one or a small number of shifts and although it permitted the drivers to provide a substitute or cancel the shift at short notice[2].  In 2022, the Court of Appeal overturned the decision of the High Court and held that the absence of an obligation on a driver to work a particular shift had not been properly considered by the Commissioner.  Unless there is an obligation on the employer to offer work to the person, and a corresponding obligation on the person to carry out that work then, the Court of Appeal held that the position must be that the individual is a self-employed contractor.  The Court of Appeal held that no such mutuality of obligation existed in Karshan and that the drivers were self-employed contractors.  In October 2023, on appeal to the Supreme Court, this finding was overturned.

The Five-step Framework

In his judgement on the matter, Murray J rejected the previously held view that “mutuality of obligation” was the threshold test, or the “sine qua non” of an employment relationship.  Instead, at paragraph 253, he prescribed the following five questions which function as a decision-making framework to determine if a worker is employed under a contract of service:

(i)                  Does the contract involve the exchange of wages or other remuneration for work?

(ii)                 If so, is the agreement one where the worker is agreeing to provide their own services, and not those of a third party, to the business?

(iii)                If so, does the business exercise sufficient control over the worker to render the agreement one that is capable of being an employment agreement?

(iv)               If these first three requirements are met, the decision maker must go on to consider if the terms of the contract between the employer and the worker, interpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment or with some other form of contract, having regard, in particular, to whether the arrangements point to the worker working for themselves or for the business/employer.

(v)                Finally, consideration must be given to whether there is anything in the particular legislative regime under consideration that requires a particular approach to be taken, for example, a person might be an employee for social insurance purposes but self-employed for employment law or tax purposes.

In their submissions, both sides refer to Murray J’s direction, at paragraph 236, to treat the first three questions as “a threshold test” or “filter questions.”  Unless questions (i), (ii) and (iii) can be answered in the affirmative, a contract of service cannot exist.

The parties agree that the complainant can answer “yes” to question (i); her contract involved the exchange of pay for work.  The respondent argues however, that she cannot answer “yes” to question (ii), because she did not always and exclusively do the work herself.  Mr O’Doherty pointed out that, in their submission to the WRC in advance of the hearing on January 15th 2025, the respondent stated, at paragraph 3.10 of that submission, that it accepts that the complainant agreed to provide her own services as an independent contractor to the business.  My notes of the hearing record Ms O’Byrne stating that the complainant can answer “yes and no” to question (ii) because she does not exclusively and, at all times, provider the service herself. 

Considering question (iii), and the issue of control, the respondent argues that the complainant has not established that the degree of control between her and RTÉ was such that she was an employee.

I intend now to examine the positions of the parties regarding question (ii), “the Personal Service Test” and question (iii), “the Control Test.”

Question (ii), the Personal Service Test

Referring to the Code of Practice, on behalf of the respondent, Ms O’Byrne focused on the question under this heading of “who does the work when the worker is absent?”  She noted that in her 2014 tender application, the complainant referred to two named photographers that she had trained “specifically for Fair City stills.”   She claimed that she required a substitute for an average of three weeks per year.  When she tendered again in 2019, the complainant referred to three photographers that she had been working with “who cover for me in cases of planned holidays as well as in cases of emergency.”  

In her evidence, the complainant said that she had specific people to call on if she needed to be absent, or for holidays and that she paid these people herself.  Ms O’Byrne referred to the guidance in the Code of Practice that indicates that a factor in determining the personal service test is the degree to which the business, in this case, the respondent, had a say in who the worker hired as a substitute.  The respondent’s position is that question (ii), is the worker agreeing to provide their own services and not those of a third party, to the business? can not be answered wholly in the affirmative.

Considering this second limb of the framework test, Ms O’Byrne asked me to examine the case at the UK Employment Tribunal of Trapp v Reverend Ashman and the Parish Council of St John the Baptist Church Weston Super Mare[3] (“Trapp v St John’s Church”).  Mr Trapp was a director of music and at issue was his status as an employee or a self-employed contractor.  Ms O’Byrne suggested that there is a parallel between the complainant, a photographer, and Mr Trapp, a musical director because both are engaged in artistic endeavours.  Arising from a traffic accident, Mr Trapp was absent from his position as a musical director for 18 months and the Employment Tribunal found that the fact that he was permitted to pay a replacement until he was able to return to work, was fatal to his claim that he was an employee.  Mr O’Doherty noted that, at no stage during her 12 years of working for the respondent, did the complainant have someone substitute for her in this manner.

Mr O’Doherty argued that the tender application in which the complainant confirmed the availability of three people who could substitute for her must be seen in the context of the purpose of the tender document, which is an application form for a job.  He asserted that none of the case law on the issue of employment status have found that statements in an application form have any relevance. 

Mr O’Doherty referred to the fact that the tender document was drafted entirely by the respondent and he said that the complainant “felt compelled to provide RTÉ with the assurances that they were looking for” with regard to the availability of substitution.  In her evidence, the complainant said that she had no “staff resources” and her substitutes were described as such because she felt that she had no choice but to do so.

Mr O’Doherty argued that it is untenable for the respondent to claim that, because the complainant required substitution for two or three weeks a year, she cannot be considered to be an employee.  He said that no employee is expected to work for 50 weeks of the year without being absent for some reason.  Every employee falls sick at some point, and the only difference between an employee and the complainant was that she was expected to arrange for her own replacement, who had to be approved by the respondent.

Question (iii), the Control Test

It is the complainant’s position that the respondent exercised control over the work that was to be done, the means to be employed in doing it and the time and place at which it was to be done.  The complainant was provided with a schedule every Thursday, and this determined the shape of her working week.  She had no discretion in relation to when she could do the work.  The respondent’s “project manager” was a member of its own staff and this person supervised the complainant in the performance of her duties.  The complainant always worked under the guidance and control of this manager, who directed the type and number of photographs to be taken, with the complainant having next to no discretion in relation to her own judgement or initiative.

In her submission dated January 30th 2025, provided after the hearing, Ms O’Byrne referred to the guidance at section 5.3 of the Code of Practice which states that the control question “considers the ability, authority, or right of a business to exercise control over a worker concerning what work should be done, and how, when and where it should be done.”  While it was necessary for the complainant to be on the set to take the photographs each week, the other work related to editing, post-production, enhancement, preparing packs and administration, was done at any location selected by the complainant.  In her evidence, the complainant said that each week, she selected 16 of the best of around 50 photographs, which she then edited and added the meta data as required.  

In response, in his submission of February 14th 2025, Mr O’Doherty said that the complainant spent less than 10% of her time on selecting, editing and uploading her photographs for publication and, some of the time, she did this work in the production studio, where she was allocated a desk.

Ms O’Byrne returned to the precedent in Trapp v St John’s Church, where the Tribunal remarked that there is no settled definition of employment and that it was faced with “weighing up the facts which point in different directions.”  The Tribunal referred to the decision of the Court of Appeal in Hall (Inspector of Taxes) v Lorimar[4], where it was held that,

“…it was necessary to consider many different aspects of the person’s work activity and that this was not to be done by way of a mechanical exercise of running through items on a check list to see whether they were present in or absent from a given situation.”

In Trapp v St John’s Church, the Tribunal settled on Ready Mixed Concrete (Southeast) Limited v Minister for Pensions and National Insurance[5] as the starting point in the exercise to determine Mr Trapp’s employment status.  In that case, it was held that a contract of service exists if three conditions are fulfilled:

(i)      In return for a wage, the employee agrees to provide their work and skill in the performance of a service for their employer;

(ii)    The employee agrees that, in the performance of their duties, they will be “subject to the other’s control to a sufficient degree to make that other master;”

(iii)   The other provisions of the contract are consistent with its being a contract of service. “Freedom to do a job 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.”

Ms O’Byrne submitted that, in Trapp v St John’s Church, the analysis of the Employment Judge regarding this element of control is particularly relevant to the complainant’s circumstances:

“Apart from the Claimant being informed by the Rector incumbent at the time, latterly Reverend Ashman, what hymns would be required in the Sunday Services, I find that there was very little control over how the Claimant performed his role.  He had largely a free hand in what music he provided.  The Claimant equated cooperation with the Rector and discussion on choice of music with Reverend Ashman, to being told or directed what music to play.  I do not find that is accurate.  There was little evidence of a hierarchical structure in which the Claimant was told what to do, or what to play.  The Claimant was an accomplished musician and in particular an accomplished organist and pianist.  His task was to fill St Johns with music and he did so with minimal direction from or control by the Rector who was content that the Church was continuing its musical and choral tradition. Whilst the hours the Claimant actually played the organ and conducted the choir were fixed by the days and times of church services, the hours he worked were otherwise largely at his discretion.”

Ms O’Byrne submitted that, in a similar manner, the complainant took photographs on fixed days when the relevant Fair City actors were on the set, but the time at which she processed and edited the photographs was at her own discretion.  The respondent sought photographs of particular subjects, but the product was in the control of the complainant and relied on her artistic professionalism and experience. 

Mr O’Doherty rejected the comparison between the complainant and the musical director in Trapp v St John’s Church.  He argued that the attempt to draw a parallel between the fact that Mr Trapp was allowed to practice and rehearse at a time of his choosing and the fact that the complainant could upload and edit her photographs in her own time “simply must fail.”  He compared the complainant’s circumstances to that of a teacher who teaches classes at specific times and corrects homework and tests at a time of their choosing and he submitted that it is absurd to consider that this discretion is inconsistent with a teacher being an employee. 

Mr O’Doherty referred to the respondent’s assertion that the photographs taken by the complainant were in her control, “relying on her artistic professionalism, skills and experience.”  He said that this is a meaningless attempt by the respondent to show that, similar to Mr Trapp, there was no hierarchical structure.  He said that the complainant’s job was different to that of a director of music in a church, because her job was conducted entirely on the premises of RTÉ, during hours set by RTÉ, apart from a small amount of post-production editing, which she did at home, and even then, she had a deadline to meet.

In support of the position that the respondent did not exert a sufficient level of control over the complainant, Ms O’Byrne referred to another UK Employment Tribunal case, Sagna v Drumroots Limited[6].  Mr Sagna was a west African drummer and performer and the Tribunal held that, while his employer exerted “a low level of control…it amounted to no more than would be expected for any performer booked by a client: where and when to attend and, sometimes, what costume to wear.”

Mr O’Doherty argued that this precedent has no relevance to the case under consideration, apart from the commonality that the complainant and Mr Sagna work in the artistic arena.  He referred to the employment judge’s focus on Mr Sagna’s “only occasional and not regular” performances (between 14 and 30 per year) and his very low income from Drumroots Limited as important factors in the finding that he was not an employee.

The respondent argues that, as a professional photographer, the level of control that the respondent had over her work was not sufficient to amount to a contract of employment.  Mr O’Doherty submitted that this suggestion has been debunked by the judgement in Karshan.  He referred to paragraph 29-30 of the decision, where Murray J dealt with the evolution of the control test:

“…by the mid-20th century, the direction of the test had to change to accommodate within the concept of ‘employment’ skilled workers, professionals, and managers over whose day-to-day work those retaining them had neither operational control, nor the skills to direct the worker in the execution of those tasks … the focus shifted from whether the employer controlled the way in which the work was done, to a more remote (and in some formulations, theoretical) power of direction and authority.”

Mr O’Doherty went on to refer to paragraph 233 where Murray J clarified that the relevant issue is whether the employer exerts a right of control over what is to be done, at least generally, the way in which it is to be done, the means to be employed doing it and the time and place at which it is to be done.  He noted that an employer of a skilled person “would not be expected to be in a position to direct the worker as to how to achieve the prescribed objective.”

“…in cases involving skilled work, it is to be expected that the employer will not have the right to direct how the work is to be done, the test requires that the employer retain some residual authority over it.  An analysis of the cases suggests that experienced fact finders have had little difficulty in distinguishing those cases which present this minimum level of control, from those that do not.”

Mr O’Doherty reiterated the complainant’s position on this issue in his submission of February 14th 2025 saying,

“The fact that Ms Bajgart was a skilled photographer, and the RTÉ staff members in charge of managing her were not, does not mean that they didn’t exercise control over her.”

The complainant was told what day to turn up for work and the time at which she was to attend.  On Thursday of each week, she was instructed when to be on the set the following week.  She was given a schedule itemising exactly what photographs were required.  She did no preparation at home and the entirety of her work, other than a few hours of editing, was done in the RTÉ studios.

The third precedent relied upon by the respondent under the heading of “control,” was the November 2024 decision of the High Court in Ryanair v Reddy.[7]  This was in response to an appeal against a decision of the Social Welfare Appeals Office (SWAO) which found that there was an implied contract of employment between the airline and a pilot provided through a third-party company.  Ms O’Byrne asserted that the error in the decision of the SWAO was the failure to recognise the nuances of the regulated environment in which the parties operated.  She submitted that I, as the adjudicator in this matter, must take account of the industry of TV production.  She said that the fact that the complainant attended the studio when the actors to be photographed were in attendance does not demonstrate sufficient control by the respondent to render her contract one that is capable of being an employment relationship.  In summary, Ms O’Byrne submitted that the complainant was a stills photographer and the level of control that the respondent had over her role was not sufficient to amount to a contract of employment under the Karshan test.

Mr O’Doherty rejected the relevance of Ryanair v Reddy, arguing that it is not an employment law case.  The type-rating (certification) process for pilots is for assessing their suitability for piloting certain aircraft and is not comparable with the tendering process that the complainant went through to apply for her job in RTÉ.  Mr O’Doherty submitted that the tendering process is a job advertisement and is the procedure by which someone applies for the job of stills photographer on Fair City.  He said that the mechanism by which a position is advertised has never been used to determine if the person is an independent contractor or a direct employee.

Mr O’Doherty concluded his submission on the issue of control in Karshan stating,

“Simply because the employee has a particular skill, which the employer or any of its representatives themselves does not have, and the employee uses this skill in the performance of their job without the employer being in a position to direct them in the application of this skill, this does not mean that there is a lack of control.”  

Before completing her submission on the control test, Ms O’Byrne referred again to section 5.3 of the Code of Practice and the direction to decision-makers to consider also the issues of “Enterprise” and “Integration.”  Mr O’Doherty submitted that these issues were downplayed by the Supreme Court in Henry Denny & Sons v Minister for Social Welfare[8]and that this met with the approval of Murray J in Karshan. 

“Enterprise” is the extent to which a worker carries risk and their ability to make financial gain through their own ingenuity and efficiency.  For example, can they monetise and retain the benefit of any cost savings they might achieve through innovation or improvements in the way they work?  Ms O’Byrne submitted that the fact that the complainant has taken out public and products liability insurance means that she is carrying a level of risk which is inconsistent with an employment relationship.  She is registered for tax as a self-employed worker and she claims deductions for expenses on the cost of her equipment.  Her tender application provides information about all the equipment she uses, including three professional cameras and various other pieces of photographic paraphernalia.

Regarding the fact that she carried her own insurance, and that she claimed relief from tax on the expenses she incurred while she was working, Mr O’Doherty asserted that the complainant had no choice about these matters, because the respondent dictated that she was to be categorised as an independent contractor.

Ms O’Byrne referred to a narrative section of the complainant’s 2019 tender application in which she referred to a new system she introduced four years previously whereby she uploads final images with captions to the “Client Area” of her website, www.betaphotographer.com.  She updates the Client Area weekly and all the accepted images are available, with access using a password, to journalists, press officers, designers and library archivists.  Ms O’Byrne submitted that this demonstrates that the complainant had discretion to be innovative in the provision of her services.

Mr O’Doherty argued that this innovation of her services had no effect on the complainant’s earnings and that it simply provided greater security for the photographs and made it easier for RTÉ to access them.

The complainant set the fees payable to her in the tender applications she submitted to the respondent.  In her response to the request for a tender in September 2019, she justified the increase in her weekly rate from €900 to €980 by referring to the cost of updating her equipment, the increase in professional and motor insurance and predictions of the rising costs of doing business in Ireland.  She referred to the increased cost of services for subcontracting work to other photographers and for accounting and book-keeping services.

Ms O’Byrne submitted that the complainant was free to make business decisions that affected her profit or loss.  In her 2017 Profit and Loss Account, she listed expenses such as motor and travel, printing and stationary, phone and computer costs, heat and light.  She submitted self-assessment tax returns as a self-employed individual and not as an employee.  Her tax return included the profit on work she did outside her assignment with the respondent.  Ms O’Byrne submitted that the claims for tax relief on expenses and the fact that the complainant made a self-assessed tax return satisfy the enterprise element of the control test and are not consistent with the complainant being an employee. 

The “Integration Test” is concerned with the extent to which a worker is an integral part of the operation of the employer’s business.  Ms O’Byrne submitted that the following facts indicate that the complainant was not sufficiently integrated to be regarded as an employee:

§  None of the respondent’s employees reported to her;

§  She had no email address connected to the respondent;

§  She had no access to facilities such as the gym;

§  She did not participate in a performance management process.

Mr O’Doherty submitted that these conditions are not central to the Integration Test.  He said that the complainant was provided with an internal email address between 2011 and 2014, before she responded to the invitation to tender.  He asserted that she was an integral part of the staff of RTÉ, “performing a vital task without which Fair City, in conjunction with the RTÉ press office, could not operate.” 

Contrary to the assertions of the respondent, Mr O’Doherty described the control exercised by the respondent over the complainant as “almost total, save for the narrowing down of roughly 50 photographs which she took to 15 – 20 photographs which she supplied to RTÉ, which she sometimes did at home.”  He argued that “even this narrowing down hardly constitutes evidence of her being self-employed, as it was simply the same exercise of editorial judgement that any employee would make pursuant to their own area of expertise.” 

Satisfying the Threshold Test at Questions (i), (ii) and (iii)

While the complainant can answer “yes” to question (i) regarding pay for work done, as I have set out, it is the respondent’s position that she cannot satisfy question (ii) regarding the requirement to provide the service exclusively or question (iii) regarding control, and that I need to look no further in my examination of her employment status.  For her part, the complainant argues that she has answered the three threshold questions in the affirmative, and she asks that I proceed to examine her response to question (iv) and, as Murray J stated at paragraph 236 of Karshan, “to allow the interrogation of all the facts and circumstances to ascertain the true nature of the relationship.” 

Question (iv), The Terms of the Contract in Light of the Factual Matrix

Since the publication of the decision in Karshan, the phrase “factual matrix” has been seized upon as a short-hand for what Murray J intended by the fourth test in the five-step framework.  Paragraph 237 of the judgement contains his direction in this regard:

“Are the terms of the contract between employer and worker interpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the putative employee working for themselves or for the putative employer.”

At paragraph 239, Murray J provides clarification regarding this element of the test where he refers to the decisions in Castleisland Cattle Breeding Society Limited v the Minister for Social Welfare,[9] and in Henry Denny & Sons which held thatthe decision-maker must take account of “the actual dealings between the parties” and consider the relevance of “the manner in which the work was done.”  In Castleisland, Geoghegan J stressed that the Social Welfare Appeals Officer was bound to examine the real day to day arrangement between the parties.

It is apparent from the submission of both sides regarding this fourth point of the Karshan framework, that there is a fundamental disagreement between them regarding precisely what I am required to examine under this heading.  The complainant points to the manner in which she carried out her job on the set of Fair City on a day-to-day basis.  The respondent is focussed on the fact that the contractual agreement provides that she was a supplier to the respondent and that she was employed as a self-employed contractor.  To reach a conclusion on this, I intend to examine the differences between the parties on this issue.

The Reality of the Employment Relationship and the Intention of the Contract

In her submission, the complainant asks that I “look at the reality of the employment relationship between the parties.”  In so doing, Ms O’Byrne asserted that she is asking me to decide if and when it is possible in Irish law to allow evidence of the conduct of the parties to override the consequences of the detailed written contract.

Mr O’Doherty argued that, in addition to the factual matrix, consideration must be given to “the working arrangements between the parties as disclosed by the evidence.”  He referred to the decision of the Supreme Court in Henry Denny and the acceptance by Keane J that the Social Welfare Appeals Officer was correct to look behind the wording of the contract that stated that the supermarket demonstrator, Ms Mahon, was providing her services as an independent contractor.  He referred to Keane J’s observation that the money earned by Ms Mahon was determined by the extent to which her services were availed of by Henry Denny & Son Limited.  She could not manage her situation to make any more money.  She did not engage others to assist her and if she was unable to work, she had to arrange cover by a person approved by Henry Denny & Son.  Mr O’Doherty submitted that this is precisely the circumstance in which the complainant found herself.  He argued that nothing in Karshan overrides this finding in Henry Denny and I, as the adjudicator must have regard to Keane’s dicta on this point.

Responding to this matter in her post-hearing submission, Ms O’Byrne referred to clause 5.4 of the Code of Practice which states as follows:

“While a detailed written agreement may carry significant weight, efforts to describe a relationship in a particular way which differs from the day-to-day reality, in order to circumvent or frustrate the operation of statutory provisions, will be challenged.  Additionally, terms of a written contract, which seek to describe the legal consequences of rights and obligations or conclusions of law, rather than defining the rights and obligations of the parties to the contract, may be disregarded.  Phrases such as ‘as a self-employed contractor you will be responsible for your own tax’ will carry little weight.”

Do the arrangements point to the complainant working for herself or for the employer?  Ms O’Byrne argued that the decision in Karshan, which held that the UK precedents (specifically Autoclenz Limited v Belcher[10]) which have been used to look behind the contractual terms negotiated between the parties do not represent the law in Ireland.  In Autoclenz, it was held that, although the people who did the car valeting were described as self-employed contractors, in reality, they were employees.

At paragraph 243 of the decision in Karshan, Murray J presented his conclusions on this issue as follows:

“As I have alluded to, there may well be cases in which it is found that the parties elected to describe their relationship in a particular way in order to circumvent or even frustrate the operation of some statutory provision, which would engage both questions of statutory intent and the doctrine of sham.  But outside that situation whether, and if so when, it is possible in Irish law to otherwise allow evidence of the conduct of the parties to override the consequences of detailed and written contract, have to await a case in which that question is properly in issue, and is argued in full.”

Ms O’Byrne argued that the instant case is not that which is awaited as described above.  She asserted that there is no suggestion that there have been efforts to describe the relationship between the complainant and the respondent in a particular way “to circumvent or even frustrate the operation of some statutory provision.”  It is the respondent’s position that the issue for consideration here does not require an analysis of whether the parties conducted themselves in a manner different to or at odds with the terms of their written agreement.  Ms O’Byrne submitted that the decision in Karshan has provided an important clarification on this issue and it is not permissible for me, as the adjudicator, to look behind the terms agreed between the parties and specifically, the most recent contract dated September 28th 2019.

Mr O’Doherty argued that there are glaring flaws in this argument.  He submitted that the reliance by Autoclenz on the defence that there was no obligation on it to provide the valets with work and that the valets could substitute workers at their discretion did not reflect the reality of the working relationship.  The valets never turned down work and never used substitutes.  At paragraph 87 of his decision in Karshan, Murray J highlighted this reality, which contradicted the specific terms of the employment relationship.  Noting the comments from a different UK case which were approved by Lord Clarke in Autoclenz, Murray J stated:

“If the reality of the situation is that no-one seriously expects that a worker will seek to provide a substitute, or refuse the work offered, the fact that the contract expressly provides for these unrealistic possibilities will not alter the true nature of the relationship.”

In his submission at the hearing on January 15th 2025, Mr O’Doherty argued that the respondent’s submission “appears to fundamentally misunderstand” what Murray J is referring to at paragraph 241, when he says,

“This court has never adopted this position, and neither Henry Denny nor Castleisland should be understood as having so decided.  In neither of those cases was it expressly decided that the substantive terms of the parties’ written agreement (as distinct from the conclusions of law they sought to include in their contract) could be over-ridden simply because they were contradicted by the parties’ conduct.”

Mr O’Doherty asserted that Murray J was not referring to the aspect of the contract that described the workers as independent contractors, but to the terms of the contract that described the manner in which the work was to be carried out.  He submitted that the respondent is persisting with a fundamental mistake of confusing “the factual matrix” with the terms of the contract that describe the complainant as an independent contractor.  He clarified that the complainant is not seeking to set aside the terms of the contract which describe how she performed her work.  She is seeking to contradict the terms which describe any obligation to provide work, or any rights to substitution.  She is not, as Murray J stated at paragraph 243, seeking to,

“…sanction the wholesale replacement of a detailed written agreement with deductions from the manner in which the parties operated the agreement.”

The complainant agrees that the contract between her and the respondent largely described the reality of how she conducted her work.  However, her position is that “the resultant reality,” points to the respondent’s description of her legal status as a self-employed contractor as incorrect.  Mr O’Doherty submitted that the complainant is seeking to do exactly what Murray J says is permissible, which is to challenge the legal consequences of how the respondent has chosen to describe the relationship between them. 

If I, as the adjudicator in this matter, cannot look behind the fact that the agreement defines the complainant as a supplier and an independent contractor, then, Mr O’Doherty submitted, two obvious questions pose themselves.

Firstly, he argued that, in Karshan, by upholding the decision of the Taxes Appeals Commissioner, Murray J set aside the term of the contract that stated that delivery drivers employed by Dominos were independent contractors.  How could he have found that the drivers were employees and not contractors, if the respondent is correct and that a decision-maker cannot look beyond what is stated in the agreement?  Mr O’Doherty submitted that exactly the same outcome emerged from the judgement in Henry Denny & Sons v Minister for Social Welfare[11], when the description of the supermarket demonstrators as independent contractors was set aside.

Secondly, Mr O’Doherty asked why Murray J would have constructed the five-point test in the manner in which he did?  Why did he consider the first three points to form a threshold issue?  If the respondent’s claim is correct, Mr O’Doherty submitted that the only test is the question of whether the agreement between the parties properly describes the nature of their relationship.

Mr O’Doherty argued that Karshan explicitly rejects the suggestion that you cannot look behind the contractual terms, and instead provides a test which requires an investigation of the reality of the working relationship between the parties.  He accepts that the UK decision in Autoclenz has never been explicitly adopted in this jurisdiction, but he submitted that that relates only to the terms of the contract which seek to describe the operation of the employment relationship.  It does not relate to the overarching issue of whether a simple statement in the agreement that the person providing the services is an independent contractor is a correct one.  In support of this position, Mr O’Doherty referred to paragraph 240 of Murray J’s judgement:

“There can be no dispute around some consequences of these statements.  They mean that where an agreement purports to characterise the relationship between or the status of the parties, that description does not fetter the function of the court in determining what, as a matter of law, the agreement actually is.  There is nothing particularly unusual about this – there have many been instances (to take one example) of cases where the courts have held that what is described as a mere licence is in fact a tenancy: see, e.g., the decision of this court in Irish Shell Ltd. v. Costello Ltd. [1981] ILRM 66.  These statements also require that, as a matter of the general law, an agreement which says one thing when both parties in fact intend another will not be given effect to under the doctrine of sham, or perhaps mistake.  Again, as a matter of the general law of contract, a court is entitled to look at what the parties actually did when implementing the agreement with a view to determining whether they have, by a course of dealing, established an agreement between themselves (and if so its terms) and/or an agreement that supplements or fills the gaps in the terms of a written document.  And in that connection it is clear that the court in ascertaining the true nature of a working relationship is not analysing an ossified arrangement: a person who begins to work on their own account – perhaps casually – may as time passes become, by reason of the frequency of their work or absorption into the employer’s undertaking, an employee.”

Mr O’Doherty argued that this conclusion is entirely consistent with the previous decision of the Supreme Court in Henry Denny, with which Murray J did not disagree.  Mr O’Doherty referred to page 48 of the judgement in Henry Denny where Mr Justice Keane stated as follows:

“In the present case, both the appeals officer and the learned High Court Judge were of the view that the fact that Ms. Mahon was described in the written agreement as being employed as an ‘independent contractor’ was not conclusive.  It is accepted that they were correct in so holding.  It is correct to say that the appeals officer appears to have taken the view that the importance of the terms of the written contract was somewhat diminished by the fact that Ms. Mahon wanted the job and accordingly had no option but to sign the contract.  However, it is also clear from his report that he considered in some detail the actual terms of the written contract and also had regard to the manner in which the work was done by Ms. Mahon … it has not been shown that the appeals officer in any way misconstrued the written contract: he was, on the contrary, entirely correct in holding that he should not confine his consideration to what was contained in the written contract, but should have regard to all the circumstances of Ms. Mahon’s employment.”

Mr O’Doherty submitted that this is clear authority for the fact that simply because the respondent states, in its tender document and in the contract, that the complainant is an independent contractor, does not make that statement correct at law.

This point was reiterated by Keane J at page 51 of his judgement in Henry Denny:

“…the written agreement was undoubtedly drafted with understandable care with a view to ensuring, so far as possible, that Ms Mahon was regarded in law as an independent contractor.  However, as I have already pointed out, although this was a factor to which the appeals officer was bound to have regard, it was by no means decisive of the issue.  When he took into account all the circumstances of her employment, he was perfectly entitled to arrive at the conclusion, as he did, that she was employed under a contract of service.”

Mr O’Doherty submitted that these authorities “mark the death knell” for the respondent’s argument that “it is not permissible for the WRC to look behind the agreement between the two parties.” 

The Rights and Obligations of the Parties to the Contract

Relying on the Code of Practice, Ms O’Byrne submitted that I, as the adjudicator in this matter, must focus on the rights and obligations of the parties to the contract.  She referred to clause 1.2.10 of the 2019 contract which provides that, in the event of any ambiguity or conflict between “the Conditions and Tender Documentation,” the order of precedence is:

(a)    The general purchasing terms and conditions;

(b)    Schedules 1 and 2 of the terms and conditions;

(c)     The invitation to tender;

(d)    The supplier’s proposal.

Asserting that all these documents “provide the unambiguous basis of the relationship,” Ms O’Byrne submitted that I must ask whether,

“…the terms of the arrangement / agreement / contract between the business and the worker interpreted in the light of the practical / real conditions of engagement (the factual matrix) are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the worker working for themselves or for the business / employer.”

The respondent’s case is that the rights and obligations in the documents referred to above are not consistent with an employment relationship.  She argues that the complainant has failed to demonstrate that the agreement, for which she submitted a tender, amounts to a contract of employment.  In support of this position, she referred to paragraph 259 of the decision in Karshan.  At paragraph 49, Murray J concluded that, in respect of the pizza delivery drivers, the conclusions of the Taxes Appeals Commissioner regarding the issue of control should not be upset.  He went on at paragraph 259:

“That being so, the next question required the Commissioner to consider all the circumstances of the employment.  In that regard, her focus was correctly on the extent to which the drivers were properly viewed as carrying on business on their own account.  The factors taken into account in this regard by the Commissioner were correctly viewed by her as militating against their being independent contractors – they did not take calls from customers, did not employ (or have the right to employ) their own labour to undertake the tasks, they took no credit or economic risk, they worked exclusively from Karshan’s premises, their ability to maximise their own profits was very limited and constrained by the control exercised by the on-site managers, they did not advertise their services and they did not scale their delivery business to any particular market.  Some of the factors considered under the rubric of the control test were also relevant to that conclusion – the fact that the drivers were required to wear uniforms, to carry branding on their vehicles and that they could deliver only those pizzas directed to them by the managers.  In short, their economic activities were so restricted by the terms and conditions imposed by Karshan that they could not be said to have been engaged in their own business: their work was in every sense work for Karshan and was directed towards advancing its business, not their own.  Without doubt, it was relevant that they had to use their own vehicles and telephones and that they had to carry and fund their own insurance, but the Commissioner was quite entitled to conclude that these features of the arrangements were, when it came to characterising the relationship, outweighed by the other factors identified by her.  Indeed, her approach to that issue mirrors that adopted in the New Zealand Uber case (E Tū Inc. v. Rasier Operations BV [2022] NZEmpC 192), in which Inglis CJ adopted the position that the fact that drivers provided their own vehicle and smartphones was neutral: that was not the sort of investment that would otherwise indicate that they were carrying on their own business.  It was also relevant that in some situations the drivers might through their own efficiency have been able to maximise their income, but the circumstances in which it was found that this was so, were marginal and the extent of the additional profit to the drivers de minimis.”

Applying this dicta to the complainant’s circumstances, Ms O’Byrne submitted that,

(a)    The complainant had the right and did employ her own labour to undertake the work;

(b)    She took credit and economic risk;

(c)     She did not work exclusively from the respondent’s premises, but could do some of her work at any place of her choosing;

(d)    Her ability to maximise her profits were not constrained by the respondent or by the respondent’s managers;

(e)    She advertised her services and had a specific website that she upgraded in 2019 to make it more user and client-friendly;

(f)      Using her website, she expanded her business to the market.

Mr O’Doherty submitted that paragraph 259 of Karshan, to which the respondent has referred, is more properly an evaluation of the second test of the five-part framework (does the worker provide their own services and not those of a third party?).  He disagreed with each of the points above and submitted as follows:

(a)    The right of the complainant to provide a substitute was subject to approval by the respondent and was minimal, amounting to three weeks of the year, or less than 5% of her working time.

(b)    It is not correct to suggest that the complainant took an economic risk in her business by updating her camera and equipment every few years.

(c)     The complainant worked in the respondent’s premises for more than 90% of her time as this was the amount of time that was taken up shooting the photographs.  The complainant’s evidence in this regard was not contested.

(d)    The complainant had no ability to maximise her profits.  She was paid a fixed fee which was increased only if the respondent asked her to provide additional photographs above the number required by her contract.  This evidence was also not contested.

(e)    The fact that the complainant had a website to offer her services is irrelevant.  Mr O’Doherty asserted that there is nothing in law that states that an employee cannot offer their services to others.  Given her commitments to RTÉ of up to 30 hours each week for 50 weeks a year, the complainant had little time to do work for anyone else and she worked uniquely for the respondent for more than 12 years.  This is also the complainant’s response to point (f) above.

Considering the contract as part of the factual matrix, Ms O’Byrne referred to paragraph 263 of the decision in Karshan:

“Here it is necessary to revisit the overarching contract.  The principles by reference to which this fell to be construed could not have been controversial, being properly directed to the words used by the parties when put in their proper context, each clause being interpreted in light of the provisions of the agreement as a whole and taking into account the purpose of the agreement and over-riding importance of construing it so as to give it commercial efficacy (see Law Society v The Motor Insurance Bureau of Ireland [2017 IESC 31).”

At the hearing, Ms O’Byrne referred to the open letter from the complainant to the Fine Gael senator, Micheál Carrigy published in the Irish Times and the Irish Independent in September 2023 in which she challenged the senator’s opinion of the value for money she provided in her role.  In her letter, the complainant stated that “the photographer on RTÉ’s Fair City is an independent contractor…”  On her LinkedIn page, she describes herself as being self-employed.  Ms O’Byrne submitted that these facts demonstrate that the complainant did not consider herself as an employee of the respondent. 

Mr O’Doherty asserted that the respondent’s description of the complainant as an independent contractor is not the factual matrix. Neither is it the description that the complainant attributed to herself in September 2023 when she described herself as an independent contractor “because she did not want to upset her employer and potentially lose her job, by publicly describing herself as an employee…”

Other Matters Related to the Contract

The complainant suggested that it is inconsistent with a commercial contract that the respondent exerted intellectual property rights to the photographs she took.  Ms O’Byrne submitted that it is generally accepted that ownership of intellectual property created during the course of employment is vested in the employer.  It is commonplace therefore, for an organisation engaging a contractor, who cannot rely on its rights as an employer, to include terms in a contract to the effect that any intellectual property created by the contractor during the course of their engagement is assigned to the company.  To protect their interests, the respondent required that any intellectual property rights created were vested in them.  It is not comprehensible for the respondent to procure the complainant’s service on any other basis.

In this regard, Ms O’Byrne referred to the First Tier Tribunal decision in HMRC v Atholl House Productions Limited[12], which held that the TV presenter, Kay Burley, was engaged by the BBC as a self-employed contractor and not as an employee.  Ms O’Byrne referred to the decision of Sir David Richards as being of particular interest to the present claim:

“The relationship of employment is created by the employer and employee through the contract made by them.  The question for the court or tribunal is whether, judged objectively, the parties intended when reaching their agreement to create a relationship of employment.  That intention is to be judged by the contract and the circumstances in which it was made.  To be relevant to that issue any circumstance must be one which is known, or could be reasonably be supposed to be known, to both parties.  Those circumstances are the same as those comprising the factual matrix admissible for the interpretation of contracts: the “facts or circumstances which existed at the time that the contract was made, and which were known or reasonably available to the parties” (Arnold v Britton [2015] UKSC 36; [2015] AC 169 at [21]).” 

In HMRC v Atholl House, Lord Justice Arnold stated,

“…the answer to the question as to what limit there is on the factors to be taken into account is supplied by basic principles of contract law…  That contract, like any other agreement in writing, should not be construed in a vacuum, but in the light of the admissible factual matrix.  It follows that a factual circumstance known to both parties at the date of the contract (such as, for example, the fact that the person providing the work has an established career as a freelance) should be taken into account.  It also follows that a factual circumstance not known or reasonably available to one party (such as, for example, the precise terms on which the person doing the work has performed work for other parties if those terms have not been disclosed to the alleged employer) cannot be taken into account.”

Arguing for a balance between the reality of the working relationship and the written terms of a contract, Mr O’Doherty quoted from paragraph 73 of the decision in Karshan, where Murray J referred to the Castleisland Cattle Breeding case:

“The wording of the contract, Geoghegan J. said, remains of great importance (at para. 20, p. 161) but, perhaps, of equal note is the significance attached by the court in interpreting it to the overall factual matrix in which it was put in place.”

The background to Castleisland is that a group of workers employed directly as artificial inseminators had negotiated redundancy terms and were re-engaged as independent contractors.  Mr O’Doherty submitted that the factual matrix included the nature of the employment relationship that was negotiated between the parties at the time the contracts were agreed.  He suggested that this is similar to the finding in HMRC v Atholl House where the BBC entered into a contract with the presenter, Kay Burley.  Mr O’Doherty argued that the complainant’s case does not compare with Castleisland, because the claimants had previous been directly employed and had negotiated a change in their employment status.   In Atholl House, as the BBC was keen to retain her services, Ms Burley was in a position to make certain demands regarding the terms of her engagement.  The complainant had no such power and Mr O’Doherty described her circumstances as “a world apart” from those of the BBC news anchor.

Mr O’Doherty argued that “there is no factual matrix to speak of in the creation of the agreements between RTÉ and Ms Bajgart.”  Her terms and conditions were presented to her on a “take it or leave it basis.”  He described the suggestion that she had any say in the possibility that she would be retained as an employee as “so fanciful that it does not even bear consideration.” 

Guidance from the Code of Practice:  Typical Characteristics of an Employee

In her submission of February 10th 2025, Ms O’Byrne provided a table that compares the typical characteristic of an employee, listed at section 6 of the Code of Practice, with the respondent’s position regarding how those characteristics do not apply to the complainant.  A second table is provided, in line with section 7 of the Code of Practice, seeking to demonstrate that the complainant fulfils the typical characteristics of self-employment.  I have examined the contents of the tables and I find that the extent to which the complainant meets each item in the list are often marginal and not helpful to the respondent’s position.  I note also that Ms O’Byrne did not refer to the section titled “Important caveats” at sections 6 and 7 which include the following cautions:

§  An individual could have considerable freedom and independence in carrying out work and still be an employee.

§  An individual with specialist knowledge might not be directed as to how the work is to be carried out and still be an employee.

§  Some individuals may also be self-employed in respect of other work being performed by him or her and may still be regarded as an employee of another business.

§  It is possible to be employed and self-employed at the same time in different jobs.

§  Some individuals work remotely or otherwise not on the business premises and are still regarded as employees.

§  The fact that an individual has registered for Income Tax or VAT under the principles of self-assessment does not automatically mean that they are self-employed.

Conclusions on Question (iv), The Terms of the Contract in Light of the Factual Matrix

Concluding her arguments on the fourth limb of the framework test, Ms O’Byrne said that the complainant applied for the work offered by the respondent though a publicly advertised tender process.  With her application, she included her insurance policies, tax returns and a cover letter that refers to “the opportunity to evaluate and assess my business and look at new possibilities to improve my service.”  She referred to her “business practices” and her commitment to comply with “all relevant legal requirements, codes of practice and regulations” concerning the impact of her business on the environment.  She did not apply in 2023, when her 2019 contract ended.  At no point prior to November 2023 did the complaint claim to be an employee of the respondent.  She never claimed that the contracts she signed were inaccurate, sham or unrepresentative of the agreed terms.  Ms O’Byrne re-emphasised that the plain meaning of what was contractually agreed between the complainant and the respondent was a contract of services, which included express reference aimed at characterising the relationship as one between a commercial organisation and an independent contractor. 

Mr O’Doherty referred to the fact that, under the agreements entered into by the parties in 2011, 2014 and 2019, the respondent appointed a project manager to supervise the complainant in the performance of her duties.  This was the person from the press office who instructed the complainant about what photographs to take.  Mr O’Doherty said that the clause in the complainant’s contracts in 2011, 2014 and 2019 were all identical:

“10.1  The RTE Project Manager has been appointed by RTE for the purpose of these Conditions to ensure that due and proper compliance by the Supplier of its obligations herein and to act on RTÉ's behalf in relation to certain matters in connection with these Conditions.

10.2  The Supplier shall comply with the reasonable requirements and recommendations of the RTÉ Project Manager providing that the requirements and recommendations of the RTÉ Project Manager are consistent with these Conditions.

10.3  The RTÉ Project Manager shall at all reasonable times be available and liaise with the Supplier and RTÉ and shall have full responsibility for reviewing workmanship and progress of the supply, installation, application and making Ready for Use the Products and/or Services, for the satisfactory completion of any inspection and all the Testing Procedures including the final Acceptance Test and for the supervision of the Supplier's provision of the Services.

10.4  The RTÉ Project Manager need not necessarily be solely one person and given the nature of the tasks and the skills and expertise required may be more than one person but at all times acting jointly.  The Supplier shall be informed in writing if and when the duties of the RTÉ Project Manager might be undertaken jointly by more than one person and the procedures, including reporting procedures, which shall operate in such instances.”

Mr O’Doherty said that the complainant worked at all times under the guidance and control of this project manager, who directed the number and type of photographs to be taken.  The complainant did not use her own judgement or initiative and was under the control of RTE.

Limitation of the Judgement in Karshan

Mr O’Doherty referred to paragraph 277 of the Karshan decision, in which Murray J stated that the finding is subject to inherent limitations because the relevant provisions of the Taxes Consolidation Act do not impose a requirement of continuity of service before the relevant sections of the Act are engaged.  The decision in Karshan did not reach a conclusion on the question of whether the drivers had continuous service.  Mr O’Doherty submitted that the complainant, having worked for RTE for more than 12 years, for 50 weeks of the year, was treated by the respondent, in all but name, as a member of staff.  During the gaps in her contracts, she was kept on.  On four occasions, the optional extensions provided for in her contracts were taken up by the respondent.  On five occasions, when there was no contract in place, she was issued with a letter that provided for her continuous employment.  Even when she didn’t have a contract with RTÉ, from October 2018 until January 2019, the complainant continued to turn up for work every day.

Mr O’Doherty asserted the contract between the complainant and RTÉ does not reflect an employment relationship that was arrived at by mutual agreement to suit both parties.  The complainant was never given the option of being employed under a contract of service.  He argued that, rather than refer to the evidence of the complainant, and, in the absence of evidence of their own, the respondent persists in relying on specific language used in tender applications and contracts, all of which were drafted by the respondent without any consultation with the complainant.  He submitted that,

“The classification of the complainant as an independent contractor was an artificial construct entirely of RTÉ’s own making, with no discussion of any sort with Ms Bajgart as to whether she wanted the employment relationship to be classified in that manner.”

Concluding his submission for the complainant, Mr O’Doherty claimed that the complainant was “an employee of RTÉ in everything but name” and while she was classified by the respondent as an independent contractor, this does not make the situation correct in law.

The Relevance of Karshan

Most employment law practitioners agree that the decision of the Supreme Court of October 2023 in Karshan ushered in a new clarity and rigour concerning the determination of the employment status of a worker.  The issue at the centre of that case was the relationship between what was referred to as the “overarching contract” and the contract that came into effect each time a driver turned up for work.  The overarching contract provided that Karshan recognised the right of the delivery drivers to make themselves available on dates and times of their choosing and also the right of Karshan not to use their services.  The second contract came into effect when a driver turned up for work and this gave rise to an examination of the “mutuality of obligation” test, which, ultimately, Murray J held was no longer the threshold test that determined if a worker was self-employed or employed under a contract of service.  The “correct approach” he decided, was to resolve the issue by reference to five questions of which, the first four are material to the matter under consideration.  The fifth question, whether there is anything in the legislative regime that requires a particular approach to be taken, is not relevant to the instant case.

While not unique, the circumstances in Karshan are specific to the “gig economy” where the question of whether there was mutuality of obligation between the parties was in doubt.  The judgement in Karshan is hugely important, providing as it does, a comprehensive analysis of the law on employment status in the UK and Ireland over the last 40 years.  It is my view however, that it is important not to shoehorn an analysis into Murray J’s five-step framework, and to omit certain other criteria that may point towards one form of employment over another.  I am mindful of the dicta of Edwards J in The Minister for Agriculture and Food v. Barry[13] that all the tests are potential aids for identifying the nature of the working relationship and no single test is definitive.  This must also apply to the test in Karshan. 

Considering the agreement between the complainant and the respondent, no comparison can be drawn between her circumstances and the working arrangements of the pizza delivery drivers in Karshan.  Unlike the drivers, the complainant’s contract stipulated that she was required to turn up for work on specific days and for a specific number of hours every week.  The respondent committed to providing her with work for 50 weeks of the year for the duration of her contracts, which ran for four years and lasted ultimately for 12 years until she didn’t re-apply in 2023.  Evidently, there existed between the complainant and the respondent a mutuality of obligation about which there has been no dispute.  While the mutuality of obligation test is no longer as critical as it was before Karshan, it is my view that it remains an important criterion for determining employment status, and, in the complainant’s case, the degree of mutuality of obligation present in her working relationship with the respondent weighs more heavily in favour of her being an employee rather than an independent contractor.

The Five-step Framework

As the substance of the arguments of both sides concerned the ability of the complainant to meet the five-step framework in Karshan, I will explain my conclusions in relation to the relevant first four.  There is no argument about the first step: the complainant was engaged on the basis of a contract in which she agreed to take photographs on the set of Fair City for 20 hours each week for 50 weeks of the year.  In her final contract from September 2019 until September 2023, she agreed to do this work for €980 per week.

Question (ii), the Personal Service Test

The respondent’s case that the complainant did not meet the second limb of the test is based on the requirement for her to provide a substitute if she was not available for work.  In response to the invitation to tender, she was required to provide the names of two or three photographers who could substitute for her if she was absent.  In her evidence, the complainant said that, since 2011, she did the work personally for 47 weeks out of 50 weeks and that she provided a substitute when she was on holidays or if she or her children were sick.  I do not accept the respondent’s comparison with the musical director in Trapp v St John’s Church with regard to this issue, as Mr Trapp was absent for 18 months due to illness.  It is evident that the complainant was hardly ever sick and that, in addition to the two weeks that the set was closed at year-end, she took about three weeks’ holidays a year.  For more than 90% of the time, the complainant did the work herself.

Based on the complainant’s evidence, which was not contested, that she was present on the set of Fair City for all but around three weeks every year, I am satisfied that she meets the second limb of the framework test.

Question (iii), the Control Test

The respondent refutes the complainant’s position that it exercised control over the work that was to be done, the means to be employed in doing it, and the time when and the place where it was done.  This argument is based partly on the fact that the complainant is a professional photographer and the manager who directed her regarding what photographs to take was not.  The respondent argues that this professional dissonance meant that she was outside the control of a manager.  I do not accept this position as indicative of a worker who is not under the control of their employer.  Many professionals and skilled workers are managed by people who have higher or lower levels of qualifications compared to themselves.  For example, a hotel manager may not be a qualified chef or a waiter, but they manage and control those employees.  A film director may not be a qualified camera operator, but they give directions to the camera operator regarding what to film.  The fact that the person supervising the complainant was not a photographer is not relevant to the issue of control.  From the perspective of control, the critical issue is that the complainant could not decide when to come to work and where to turn up and what to do on any given day.   

The complainant’s evidence is that every Thursday, she was provided with a schedule of photographs to be taken the following week.  The effect of this was that she had to attend on the set at the time and place when the particular scenes were being shot.  She had no discretion in this regard.  She presented her photos to a project manager, who supervised her work and told her when the photos were to be uploaded and available.

The respondent argues that the complainant was required to be on the set of Fair City only for a portion of her time and that she could do the editing and uploading at any other location at a time of her choosing.  Ms O’Byrne returned to the musical director in Trapp v St John’s Church as a comparison with the complainant, but now under the heading of the control test.  I accept that Mr Trapp was instructed by the rector regarding what music and hymns to play and that there is some similarity with the complainant’s circumstances.  It is my view however, that the component of the complainant’s work that was under the control of the respondent and the time that she was required to attend her place of work are not comparable with Trapp v St John’s Church and that this precedent is not useful to the respondent’s case.

The complainant’s evidence is that she spent most of her time on set taking photographs and about three hours a week selecting, editing and uploading the meta data to the photographs.  She could do this at a desk that was allocated to her on the set if necessary.  While the complainant had some discretion regarding when and where she could do a small element of her work, it is my view that the requirement for her to attend the set of Fair City for three days each week and to take the photographs she was instructed to take, indicates an element of control that is consistent with that of an employee.

I have considered the respondent’s final argument under this heading that, similar to the case of Ryanair v Reddy, I must take account of the nuances of the industry in which the complainant worked.  Ms O’Byrne argued that the fact that the complainant attended the studio when the actors to be photographed were available does not demonstrate sufficient control over her work.  If this argument is to stand up, then other workers in the television sector, such as hairdressers, make-up artists and wardrobe assistants must also be self-employed.  No evidence was presented to support this contention.

With regard to the enterprise test, I can see no opportunity for the complainant to increase her earnings beyond what was agreed in her contract, although I understand that there was a provision for her to be paid more for submitting additional photographs.  It seems to me that this arrangement could apply to an employee who might agree to do more work for additional pay under the heading of “overtime”.  The fact that the complainant had public and products liability insurance is in my view, immaterial to this test, as she purchased this insurance to fulfil a term of the tender specification.  The fact that the complainant was free to make business decisions that affected her profit and loss is related to her being a self-employed worker in addition to working for the respondent, a provision that is recognised under the heading of “Important caveats” on page 13 of the Code of Practice on Determining Employment Status.

Arguing that the complainant does not satisfy the integration test, Ms O’Byrne referred to the fact that no other employees reported to the complainant, that she hadn’t got an email address in the organisation, that she had no access to facilities such as the gym and that she didn’t participate in a performance management process.  While I accept these as facts, it is my view that they are not central to the integration test, but that they indicate that the respondent did not intend the complainant to be treated as an employee.  From the perspective of how she carried out her work, the complainant was integral to the publicity element of Fair City, she was on the set with the cast for three days each week and, by taking the photographs, she contributed to the success of the programme.

Question (iv), the Terms of the Contract in Light of the Factual Matrix

Considering the way in which the complainant carried out her work, the place at which she was consistently required to do the work and the degree of supervision exerted by the respondent’s manager over her work, I am satisfied that she meets the third limb of the Karshan test under the heading of “control.”  As she has answered questions (i), (ii) and (iii) in the affirmative, I am satisfied, that she has met “the threshold test” as it is set out at paragraph 253 of Karshan.  Moving to the fourth limb, I must now determine,

“…whether the terms of the contract between employer and worker interpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the putative employee working for themselves or for the putative employer.”

I mentioned in the previous section that there is a fundamental difference between the parties regarding precisely what I am required to examine under this heading.  My sense is that the respondent’s side engaged in some obfuscation by seeking to assert that I am prevented from “looking behind the contractual terms” and by an excessive focus on Murray J’s remarks regarding the absence of a precedent in Ireland similar to that decided upon in the UK in Autoclenz.

Murray J’s rationale for his inclusion of the fourth limb in the framework test is provided at paragraph 238 and 239 of his judgement where he re-framed what was the third stage of the control test in the UK case of Ready Mixed Concrete (Southeast) Limited v Minister for Pensions and National Insurance (“RMC”) (citation at footnote 5).

“238.  This formulation seeks to make four matters clear, having regard to the case law in this jurisdiction since RMC.  First, while RMC looked to ‘the provisions of the contract’, the decision in Castleisland establishes that the contract itself must be interpreted (as, today, with all contracts) in the light of the factual matrix in which it was concluded.  There is nothing new in that regard in Irish law, but insofar as the RMC test does not make this clear, it should be expressly stated.

239. Second, both Henry Denny and Castleisland demand that in conducting that inquiry, the court must take into account the actual dealings between the parties.  Keane J. thus referred in the first of these cases to the relevance of ‘the manner in which the work was done’, Murphy J. to ‘the facts or realities of the situation on the ground’ and (in Castleisland) Geoghegan J. stressed that the Appeals Officer whose decision was in issue in that case, was bound to examine ‘what the real arrangement on a day to day basis between the parties was.’”

As pointed out by Mr O’Doherty, Murray J went on to remark that these statements mean that where an agreement seeks to characterise the relationship between or the status of the parties, that description “does not fetter the function of the court” in determining, as a matter of law, what the agreement actually is.

Setting the parameters to the function of the court, at paragraph 241 of his judgement, Murray J stated,

“The issue of whether the court can disregard provisions of a detailed written contract of employment that define the legal rights and obligations of the parties (as distinct from purporting to describe the legal consequences of those rights and obligations) where those provisions are inconsistent with the manner in which the parties have conducted themselves, raises more complex questions.”

Acknowledging that, in Autoclenz, the UK Supreme Court held that it could disregard the provisions of a contract that define the legal obligations of the parties if the provisions are inconsistent with how the working relationship was conducted, Murray J held that this was not the law in Ireland.  Explaining his rationale, he continued at paragraph 241:

“This court has never adopted this position, and neither Henry Denny nor Castleisland should be understood as having so decided.  In neither of those cases was it expressly decided that the substantive terms of the parties’ written agreement (as distinct from the conclusions of law they sought to include in their contract) could be over-ridden simply because they were contradicted by the parties’ conduct.”

It is apparent to me that the point being made here is that a decision-maker may not unravel the substantive terms of a contract of employment, but, that they may examine the “facts or realities of the situation on the ground” and “the manner in which the work was done” and they may reach a conclusion that the legal provisions on which the contract is based are not sound.

Clearly, Murray J intended the decision-maker to consider on the one hand, the terms of the contract, and to examine those terms “in the light” of the working arrangements.  It seems to me that there is an acceptance in this statement that the terms of an employee’s contract may not be reflected in the reality of the working relationship.  My role as the adjudicator therefore, is to determine if there is a difference between the intention of the contract, that is, whether it is an agreement to employ someone on a self-employed contractor basis, or as an employee, and the reality of the employment relationship.

On behalf of the complainant, Mr O’Doherty submitted that she is not seeking to set aside the terms of her contract that describe how she performed her work.  Her position is that her contract largely described the reality of her working relationship.  What she is seeking to do is to challenge the legal consequences of how the respondent has chosen to refer to her as a supplier and an independent contractor.  

Having clarified precisely what it is I am to examine under this fourth limb, I will proceed to consider if the complainant’s contract, interpreted in light of the “factual matrix,” which I consider to be a synthesis of her evidence, and the reality of the working relationship between her and the respondent, is consistent with a contract of employment or that of an independent contractor.

I have considered the written agreements between the respondent and the complainant which were produced in response to her applications to tender for the work as a stills photographer on Fair City.  I find that there is an uncanny similarity between the intention of the respondent and the findings in Henry Denny which were noted earlier in this decision but which merit recalling here:

“…the written agreement was undoubtedly drafted with understandable care with a view to ensuring, so far as possible, that Ms Mahon was regarded in law as an independent contractor.  However, as I have already pointed out, although this was a factor to which the appeals officer was bound to have regard, it was by no means decisive of the issue.  When he took into account all the circumstances of her employment, he was perfectly entitled to arrive at the conclusion, as he did, that she was employed under a contract of service.”

It is apparent that the contracts agreed between the respondent and the complainant were intended to formalise a commercial agreement between,

 “Radio Teilifís Eireann, a statutory corporation” and “Beta Bajgartova Photographer, a Sole Trade[14].”

Clause 40 of the contract dated October 23rd 2019  is titled, “No Employment and No Partnership” and clause 40.1 provides as follows:

“For the avoidance of doubt, it is acknowledged that the Supplier is a company and not an employee of RTÉ and has no entitlements to employment protections or benefits under statute, contract, common law or otherwise and the Supplier undertakes not to make any employment related claim of any nature against RTÉ during or after these Conditions, under statute, common law or otherwise.”

Comprised as it was of 45 clauses and more than 30 pages, the contract of October 2019 (and that of June 2014) was drafted to legalise an agreement with the complainant as an independent contractor.  I am mindful of the guidance at clause 5.4 of the Code of Practice which provides that a description of a relationship which differs from the day-to-day reality will be subject to challenge.  It is my view that the day-to-day reality of the complainant’s working relationship with the respondent was not consistent with how she was described in her contract as “a supplier” and “not an employee.”  I have reached this conclusion for the following reasons:

1.       The complainant was employed by the respondent for more than 12 years on a series of fixed-term contracts.  On a part-time basis, for 20 hours a week, she carried out the work of a photographer on Fair City, a role that contributes to the promotion and success of the programme. 

2.       The complainant attended work on the set of the programme in RTÉ.  She was allocated a desk at which she could edit and upload photographs onto her website for the respondent to access.  She had no discretion regarding the level of her attendance and she was limited to working from elsewhere only for three or four hours each week.

3.       She did the work personally 95% of the time, engaging a substitute for around three weeks every year.  In this regard, her attendance in the workplace compares reasonably with directly employed workers.

4.       The complainant reported to a project manager and was given direction every Thursday regarding what photographs she was to take the following week.  Her artistic independence was confined to how she set up the scenes and how she edited and presented the photographs. 

5.       The complainant was paid a fixed weekly rate of pay and she was not in a position to introduce efficiencies or innovations or to make changes to her way of working so that she could increase her earnings.  I note from her submission that she was paid fortnightly, an arrangement that is more usual for employees rather than suppliers.

6.       When she had no contract with the respondent, between October 2018 and January 2019, the complainant continued to turn up for work and she was paid her normal weekly rate, without any dispute.  In her evidence, she said that when her last contract expired in September 2023, she continued to work until she received a letter in November that year, confirming that her contract was extended.  This continuity of employment, in the absence of a contract, is indicative of a relationship of interdependence and trust, and not that of a commercial agreement.

Conclusion Regarding the Complainant’s Employment Status

I am satisfied that the complainant’s circumstances meet all the elements of the framework test in Karshan.  I accept that the authors of the agreements between the respondent and the complainant may have genuinely believed that the working relationship with her was that of an independent contractor, at least in the early years.  However, it seems to me that the sustained nature of her job and the sole reliance by the respondent on the complainant to do the work, means that the legal basis of the agreement evolved from a supplier’s agreement to that of an employee.  In this regard, I include a final reference to Murray J in Karshan, where, at paragraph 240, under the heading, “All the circumstances of the employment,” he made the following remarks: 

“Again, as a matter of the general law of contract, a court is entitled to look at what the parties actually did when implementing the agreement with a view to determining whether they have, by a course of dealing, established an agreement between themselves (and if so its terms) and/or an agreement that supplements or fills the gaps in the terms of a written document.  And in that connection it is clear that the court in ascertaining the true nature of a working relationship is not analysing an ossified arrangement: a person who begins to work on their own account – perhaps casually – may as time passes become, by reason of the frequency of their work or absorption into the employer’s undertaking, an employee.”

Over a period of more than 12 years, the complainant carried out the job of stills photographer on Fair City, an integral role associated with the promotion of the programme.  While she may have started out as a self-employed contractor, and although she did other work on a freelance basis while she worked for the respondent, based on my examination of all the facts and the evidence of the complainant, it is my view that, over time, her status became that of an employee.

The Complainant’s Acquiescence

Hanging like a cloud over this investigation is the complainant’s acceptance of her status and her failure, until November 2023, to take any action whatsoever to challenge an agreement which she now claims is legally flawed.  In the documents submitted at the hearing, there are three contracts and four extension letters, all of which are signed by the complainant and which refer to her variously as “a supplier,” “a sole trader” and “not an employee.”  Before she finished giving evidence at the hearing on January 15th 2025, I asked her directly, “When do you think you became an employee?”  In response, she said that she was an employee in 2011.  In June 2011, she was hired for the first time as a self-employed contractor to take photographs on the set of Fair City, having previously worked as a freelancer on eight episodes of Off the Rails. 

If the complainant thought that she was an employee in 2011, it seems to me that she consented to being a self-employed contractor, otherwise, I think she would have done something to address the issue.  At no stage, until November 2023, did she speak to anyone in management, or write a letter to the HR department, or even make an enquiry regarding her claim that she was an employee.  Her position is that she wanted the job and the only way to apply was through the tendering process.  While she claimed that she has “no legal knowledge,” most people in her circumstances know where to get legal advice, and she did get advice in November 2023, when she consulted her solicitors and they wrote to the respondent challenging her status as a self-employed contractor.  In her evidence, the complainant referred to some of the respondent’s staff who had been engaged as contractors and who were subsequently classified as employees and she said that she thought that she might be in the same category. 

I agree with the complainant’s position, albeit that she has raised the matter at a very late stage.  I am satisfied that she was an employee of the respondent, although not perhaps from 2011.  It is my view that it was open to her at any time from 2014, when her role was advertised for tender, to claim that she was an employee.  Why she didn’t do so has not been explained, and perhaps is not relevant.  It seems to me that, until the arrangement became uncomfortable or no longer acceptable, the complainant acquiesced in the classification of her status as a self-employed contractor.  This acquiescence has no bearing on my conclusion that her relationship with the respondent was that of an employee.

Status of employment, self-employed contractor, supplier, employee