Complainant

Respondent

Anonymised Parties

An Accounts Payable Administrator

Company S

Representatives

  Self-represented

Self-represented

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00067046-001

31/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00067046-002

31/10/2024

The complainant submits that she was employed by the respondent as a Payables Administrator from 01/04/2024 to 31/10/2024 working 20 hours per week.   She has submitted claims of discrimination under section 77 of the Employment Equality Act, 1998 on 31st of October 2024.

The Respondent contends that the Complainant is not or has never been its employee and that she has at all times been engaged as an independent contractor.

The complainant submits that she was employed by the respondent as a Payables Administrator from 01/04/2024 to 31/10/2024 working 20 hours per week.   The complainant was based in Trinidad and Tobago during her employment and worked remotely.

The Respondent contends that the Complainant is not or has never been its employee and she has at all times been engaged as an independent contractor.

The first matter for me to consider is if the relationship between the Complainant and the Respondent comes within the scope of the Employment Equality Act, 1998 as amended.

The Complainant asserted that she was an employee of the Respondent. The Respondent rejected this proposition.

Section 2 of the Acts provides the following definitions:

“employee”, subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person's home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons;

“employer”, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment.

“contract of employment” means, subject to subsection (3)—

(a) a contract of service or apprenticeship, or (b) any other contract whereby— (i) an individual agrees with another person personally to execute any work or service for that person, or (ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract),

whether the contract is express or implied and, if express, whether oral or written;”

Employment Status

Where there is a dispute between the parties as to whether an employment relationship exists in the first instance, it is necessary to first decide on that issue where such entitlements are contingent on their being employees employed under a contract of service.

The Complainant must be engaged under a ‘contract of employment’ within the meaning of the 1997 Act to come within the scope of the 1997 Act. For the purposes of the 1997 Act, a contract of employment exists if the Complainant is engaged under a ‘contract of service’ or is engaged by an agency within the meaning of the Employment Agency Act, 1971.   I am satisfied that the Respondent, in this case,  is not an agency within the meaning of the Employment Agency Act, 1971.

I must now consider if the Complainant in this case was engaged under a ‘contract of service’.

 There is a considerable amount of case law on the various ‘tests’ to be applied to determine whether a contract is a contract ‘of’ service or a contract ‘for’ services. The judgment of the Supreme Court in Henry Denny & Sons v. The Minister for Social Welfare IESC 9 [1998] is accepted as a leading authority on the issue of determining issues of employment status. The Supreme Court adopted an approach often referred to as the ‘mixed test’ which required a consideration of a myriad of factors including inter alia the degree of control exercised by the party for whom work is being done over the party doing the work; the level of integration of the person into the business; and whether the party could be said to be in business of his/her own account.

More recently, in a tax related case, Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24, Murray J for the Supreme Court rejected the notion of a ‘test’ to determine employment status, and the over reliance placed on ‘mutuality of obligation’ in determining employment status. Murray J concluded that every case turns on its particular facts and that it is necessary to assess all relevant features of the relationship, identifying those features that are and are not consistent with an employment contract and “determining based upon the sum of those parts the correct characterisation” [at: 214].

He noted that when deciding employment over a period, the overarching or umbrella contract may be important (this matter was not considered further in the case). Murray J outlined that the framework in Ready Mixed Concrete (South East) Ltd. v. Minister for Pensions and National Insurance [1968] 2 QB 497 and developed in Market Investigations v. Minister of Social Security [1969] 2 QB 173 (decisions later endorsed and applied in the Denny judgment) remain a “reliable structure for the identification of a contract of employment” [at: 253], concluding that the question of whether a contract is one ‘of’ service or ‘for’ services should be resolved by reference to the following five questions [at: 253]:

“Does the contract involve the exchange of wage or other remuneration for work?

If so, is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer?

If so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement?

If these three requirements are met the decision maker must then 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.

Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the foregoing.”

The first three questions are a filter, and if any of the three questions are answered in the negative there can be no contract of service. If all three questions are answered positively, the decision maker must then proceed to look at all the facts to ascertain the true nature of the relationship. It is important to note that Murray J emphasised that the case related only to tax laws and does not determine continuity of service for the purposes of employment rights legislation.

The complainant in the present case submits that she was employed by the respondent as a Payables Administrator from 01/04/2024 to 31/10/2024 working 20 hours per week.   The complainant was based in Trinidad and Tobago during her employment and worked remotely.

The complainant in her claim form stated, “ I am a contract for services worker for (Company S) Ltd”.

The complainant then proceeds to outline her complaint and in her submissions provided a copy of her contract entitled:

‘INDEPENDENT CONTRACTOR AGREEMENT’.  This agreement also identifies the complainant as ‘the Contractor’.

The contract proceeds to outline terms under which a service is provided to the respondent.

The respondent advised the hearing that complainant was employed as an independent contractor as per the terms outlined in the contract submitted by the complainant.

  The respondent advised the hearing that there was no requirement for the complainant to personally carry out the work and that it was open to her to appoint a substitute to carry  out the work in her place .  The respondent advised the hearing that this is set out in the contract where it states as follows:

“you may appoint a suitably qualified substitute to perform the Services on your behalf, provided that the substitute shall be required to enter into direct undertakings with the Client, including with regard to confidentiality”

The complainant disputed this stating that it was not possible for her to substitute because of the type of work she did.  The respondent submits that the only stipulation is that the person employed as a substitute must adhere to the confidentiality requirements due to client confidentiality concerns.   The respondent also submits that the Agreement between the parties  is a non-exclusive arrangement and that either Party is free to engage or contract with third parties for the provision of services similar to those provided.  The respondent advised the hearing that eh complainant also works for others.

The respondent added that the complainant was not an employee of theirs and was never on the respondent’s payroll.  The respondent added that the contract provides that the Contractor would charge the Client for the Services at an hourly rate which would be invoiced to the respondent every month.

 The complainant agreed that she invoiced the respondent in respect for the work she carried out.

The respondent stated that the complainant carried out the work at times and location which suited her.    The complainant disputed this stating that the respondent asked her to carry out the work at a specific time.  

The respondent advised the hearing that the complainant was based in Trinidad and Tobago and so would sometimes carry out her work at 3 a.m.   The respondent agreed that it did ask her to carry out her work during UK work hours in order that she could if needed be contacted by the respondent.  The respondent stated that eh complainant worked less than 20 hours most weeks and that she could do the work according to her own schedule.

The respondent at the hearing pointed to the contract which specifically states that the Contractor (complainant) is acting as an independent contractor engaged in a contract for service.

In addition, the respondent outlined that the complainant did not contribute the any social security, local, state or federal tax, unemployment compensation, workers' compensation, insurance premium, profit-sharing, pension or any other employee benefit for the Contractor during the Term.

The respondent advised the hearing that the contract makes it clear that the complainant has no entitlement to holiday pay and if she wanted to take holidays the only requirement was she had to  them notify the respondent at least 2 weeks prior to the date of their holiday to allow for adjustment relating to ongoing projects etc.

Having examined the evidence adduced in respect of this matter and in light of the questions raised in Karshan, I am satisfied that the Complainant was not an employee of the respondent for the purpose of the Act and accordingly I do not have jurisdiction to decide a complaint under the Employment Equality Act  against the Respondent as the Complainant was not an employee of the respondent.   

I have decided that the Complainant was not an employee of the respondent.  Consequently, I do not have jurisdiction to hear this complaint for the reasons set out above and I declare this claim to be not well founded.