TED255

PARTIES:

DEPARTMENT OF EDUCATION

(REPRESENTED BY MR. DENIS COLLINS B.L.   INSTRUCTED BY CHIEF STATE SOLICITORS OFFICE)

AND

BRIAN PIGOTT

(REPRESENTED BY INDEPENDENT WORKERS UNION)

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00041984 (CA-00052870-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 4 June 2024 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2012. 

A Labour Court hearing took place on the 20 February 2025. 

The following is the Decision of the Court.

DECISION:

The matter before the Court is an appeal by Brian Pigott of an Adjudication Officer decision (Adj-00041984, CA-00052870-001, dated 28 May 2024) in a complaint made by him against the Department of Education, under the Terms of Employment (Information) Act, 1994 (“the Act”).

The Adjudication Officer held that the complaint was not well founded.

A Notice of Appeal was received by the Court on 4 June 2024, and a hearing of the Labour Court was held in Cork on 20 February 2025. 

The parties are referred to in this Decision as they were at first instance. Hence, Mr Pigott is referred to as “the Complainant” and the Department of Educationis referred to as “the Respondent”.

1. Preliminary Matter

The Respondent raises a preliminary matter in relation to the Court’s jurisdiction to hear the complaint. The Respondent submits that it is not a proper party to the proceedings, as it is not the Complainant’s employer within the meaning of the Act. The Complainant rejects that assertion and maintains that the nature of the Complainant’s work and his relationship with the Respondent clearly establishes him as an employee of the Department of Education.

2. Summary Submission of the Complainant

The Complainant is employed as a home tutor by the Department of Education since 1 September 2013. Despite his long-standing service, he has never received a contract of employment.

A tripartite relationship exists between the Department of Education, the home tutor, and the parent of the child whom the home tutor teaches. No other party is relevant to the work of the home tutor. The nature of the Complainant’s work and his relationship with the Respondent clearly establishes him as an employee of the Department of Education.

• The Department directly pays the Complainant’s wages and deducts PRSI, PAYE, and USC, classifying him as a PAYE worker for tax purposes.
• Revenue correspondence to the Complainant confirms that he is not a self-employed worker and receives PAYE income.
• A payslip is generated by the Department, which the Complainant receives every pay period.
• The Complainant’s working conditions and working week are dictated by the Department.
• The Department determine the hours that he works in a given week. He is not allowed to work more than 42.5 hours per week.
• The Department restricts his ability to work during regular school holidays. He is not allowed to work as a Home Tutor during the Easter, Summer and Winter breaks, along with normal mid-term holidays
• The Department determines his hourly rate of pay.

The above restrictions are incompatible with the flexibility expected of a self-employed individual, who sets their own hours, works during any period of the year, and determines their own pay rate.

The control exercised by the Department over the Complainant’s work demonstrates the existence of a master/servant relationship, a hallmark of employment. The Complainant’s qualifications, registration with the Teaching Council of Ireland, and Garda vetting requirements further underscore his alignment with the Department’s standards for teachers. The Department benefits from the Complainant’s professional expertise while denying him the formal recognition and rights owed to employees.

While there may be no formal obligation for the Department to provide continuous work, home tutors are often re-engaged annually for the same students. This ongoing relationship reflects a moral and practical obligation to maintain consistency in the education provided to children with special needs. The lack of mutual obligation cannot be used as a justification to deny employment rights when, in practice, the same tutors are engaged repeatedly.

The Complainant fulfils the criteria for determining a worker/employer relationship as set down by the Supreme Court in Revenue Commissioners v Karshan (Midlands) Ltd T/A Domino’s Pizza [2023] IESC 24.

The Complainant meets nearly all criteria for an employee under the Revenue Commissioner’s Code of Practice on Determining Employment Status. The only exceptions - such as the absence of expense reimbursements, holiday and sick pay - are directly attributable to the lack of a contract of employment and are not indicative of self-employment, but rather of the Department’s refusal to formalise the employment relationship. Denying a contract based on the absence of benefits that arise from having a contract creates a circular argument that perpetuates the denial of employee rights.

The Department of Education has claimed that the Complainant is both an employee of the parents and self-employed. He is taxed by the Department of Social Protection under “Class S” as self-employed. However, he is not self-employed and fulfils none of the criteria for self-employment. The Complainant is regarded by Revenue as a PAYE employee, which means that there must be an employer.

The assertion that the parents are the employer is an absurdity. Parents are not registered employers and cannot hire or dismiss home tutors. The parents’ sole responsibility in the process of procuring a home tutor for their child is selecting the tutor from a list provided to them by TUSLA; an organisation funded by the Department of Education.

The only entity capable of fulfilling the role of employer in this relationship is the Department of Education. The Department retains ultimate control over the terms and conditions of home tutors’ work, making it the logical employer. The evidence unequivocally demonstrates that the Department of Education is the employer of home tutors, including the Complainant.

By failing to provide a contract of employment, the Department has breached the Terms of Employment (Information) Act 1994 and denied him the rights and protections he is entitled to as an employee.

3. Summary of the Respondent Submission

The Respondent is not the Complainant’s employer within the meaning of the 1994 Act.

The Complainant is engaged as a tutor under the Home Tuition Grant Schemes. Parents/legal guardians engage the tutor directly and avail of a grant from the Respondent in relation to the services provided directly to the child. While the Respondent paid the grant to the Complainant, this does not establish the necessary nexus between the parties to maintain a claim under the 1994 Act.

The Grant Schemes provide funding towards the provision of compensatory educational service for students who are unable to attend school for reasons such as chronic illness, children with special educational needs seeking an educational placement, early education intervention for children with autism, children (non-medical or non-special education needs) who are temporarily without a school place and students whose education may be disrupted due to pregnancy.

The Grant Schemes are governed by Annual Circulars which set out the purpose, eligibility criteria and details of the Grant Schemes. The parent/legal guardian is the only person entitled to apply for the grant and receive its benefits. The parents/legal guardians are responsible for the hiring of a suitable tutor to avail of the Grant Schemes. The parent/legal guardian must source, engage and pay the home tutor. Consequently, the contract for the provision of tuition is between the parent/legal guardian and the home tutor. 

Circular 0046/2022 addresses the engagement of tutors as a private arrangement between the parents/legal guardians and the tutors and specifically stipulates that:

“Parents/legal guardians engage tutors for the provision of home tuition in a private arrangement. The payments made to tutors on behalf of parents are subject to statutory deductions at source. The Department acts as a payroll agent only on behalf of the parents/legal guardians. “

The Respondent acts as a payroll agent only for the purposes of paying the Home Tuition Grant to the appropriate tutor. Its role in administering the grant does not equate to a contractual relationship with the home tutor under the 1994 Act.

The facts in Karshan can be distinguished from the present claim. The present claim does not engage the Karshan analysis as there are no contractual relations between the Complainant and the Respondent that gives rise to an obligation on the part of the Respondent to pay the Complainant under the Grant Schemes. The Respondent’s only role is to pay the grant, allocated to the parent/legal guardian, to the home tutor as agent for the parent/legal guardian.

Furthermore, the Complainant provides his services to the parent/legal guardian. The only role that the Respondent holds is the administration of the grant for and behalf of the parents. The Respondent does not have any power to direct the Complainant in relation to the work they carry out, their work location, the time they carry out the work and/or the conditions upon which the Complainant carries out this work. These are matters agreed between the Complainant and the parent/legal guardian. The tutor’s teaching is not controlled or monitored or subject to inspections by the Respondent. Home tutors are not integrated with the Respondent organisation.

Without prejudice to the above, even if sufficient control were established, the Karshan analysis requires an examination of the factual matrix to establish if the working arrangement is consistent with a contract of employment. Such an analysis does not arise in this case, as the parent/legal guardian is the person who enters an agreement with the home tutor under the Grant Schemes.

There is no contractual relationship between the Complainant and the Respondent under the Grant Schemes, within the meaning of the 1994 Act.

The Complainant’s submission, in relation to mutual obligations, is not the correct interpretation of the Supreme Court decision in Karshan, which ruled that the “Mutuality of Obligation” criterion for determining employment status ought to be dismissed. 

The Respondent relied on the following authorities in support of its submission: Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34 (SC); Castleisland Cattle Breeding Society Ltd v Minister for Social and Family Affairs [2004] 4 IR 158 (SC); The Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24; Department of Education and Skills v Kenneth McCarthy Determination No.TED181; Minister for Education and Skills v Anne Boyle [2017] IECA 39; Minister for Education and Skills v Anne Boyle [2018] IESC 52.

4. Evidence of Mr Brian Pigott – the Complainant

TUSLA recommends the Complainant’s name to parents, and they make contact with him. He has never turned down a request to home tutor a student. The Complainant currently works about 38 hours per week but could work double that amount based on demand.

The Department directs that he works a maximum of 42.5 hours per week between the hours of 9:00am and 6:00pm each day. It sets the rate of pay. At the end of each month, a payment form is signed and submitted to the Department by the parents. Sometimes, he submits the forms if parents can't read or write or speak English. He does not get paid if there is a cancellation. He cannot make up hours with that child the following week, or work with another child.

The Complainant applies the relevant curriculum when teaching a student on advice from the Student’s school. He receives materials from the school or the Department website. If he needs guidance about a particular child, he can access CAMS reports from TUSLA.

The Complainant’s work is checked by the Department whocontact parents by phone or in writingto check his hours. The Complainant must sign a statutory declaration form annually that states that he is of good character, and he is notified by the Department by email when the declaration expires.

The Department advised him by letter dated 26 April 2019 that home tutors are regarded as self-employed. Revenue confirmed to him by letter dated 11 January 2023 that he is not self-employed.

Under cross-examination, the Complainant said his job was to mirror the school environment in a home setting and get kids back into school. While meant as a temporary measure, in actual practice, it was not. He acknowledged that other services provide guidance to him, in addition to TUSLA, and the school principal oversees the quality of tuition.

The Complainant accepted that the Department does not direct him to work with a student. He accepted that he informs parents of his availability and can disengage from providing his services if he so wishes. He accepted that spot checks conducted by the Department were made by contacting the parent. He accepted that he signed a Statutory Declaration in 2021 which stated that parents/legal guardians could reject his application or terminate the delivery of home tuition.

The Complainant confirmed that he is a registered member of the Teaching Council. In his view, that body was not a separate body to the Department. The Complainant accepted that Social Welfare has deemed his status to be self-employed at class S.

5. Evidence of Mr Kenny Noonan – Assistant Principal

The Home Tuition Grant Scheme applies to provide a service to vulnerable children, or those with medical conditions or special needs who are out of school. The scheme is a temporary measure aimed at transitioning school kids back to school.

The quality of the service is safeguarded through the Teaching Council which ensures that teachers are registered and have the appropriate qualifications. The Department does not supervise tutors or give them direction daily.

The Department does not provide a contract of employment to tutors. It does not assign hours of work to tutors, rather teaching hours are assigned to the child. Hours of work are logged and approved by the parent and payments only made based on the hours granted. The Department conducts spot checks by writing to parents to ensure that they are happy with the service. The hourly rate pay is approved by circular. Tutors must sign an annual declaration.

Under cross-examination, Mr Noonan said that the Department issues an approval letter to parents who then engage with the tutor. Hourly rates of pay are set down in the Department Circular. The parents and home tutors have no say in amending those conditions. A Statutory Declaration Form is sent to parents who provide it to the tutor to sign.

The Department does not prescribe how the education service is provided or check the level of education; that is assessed by a multidisciplinary team. It is up to the parents to determine the standards are adequate to train teachers. While tuition is supposed to be delivered in the home, a tutor is not penalised for conducting tuition elsewhere.

6. Evidence of Ms Michelle Doran – Executive Officer

Ms Doran gave evidence about the process for paying home tutors.

Payments for home tutors are processed through the Department payroll using a pay roll number for non-teachers/SNA’s. Tutors are designated as self-employed for the purposes of social welfare. They are not employees of the Department.

The payment system is paper based. A sanction letter is issued to the child’s parents, which states the hours of tuition permitted for that child by a named tutor. Ms Doran checks payment forms, signed by the tutor and parent, against the sanction letter. Payments are only made in line with the sanction approved for a child. While parents are responsible for submitting payment forms, in practice the tutor often does so.

The Department does not assess the quality of the service delivered or have any role in disciplining tutors. Random checks of the hours worked are conducted.

Under cross examination, Ms Doran said that the Department operates a different payroll system for teachers and tutors. The Department sets the rate of pay for tutors. They are not paid during school holidays, as that falls outside terms of the scheme.

7. Relevant Law

“contract of employment" means—

(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;

“employee” 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 references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014)], a harbour authority, a health board or an education and training board shall be deemed to be an employee employed by the authority or board, as the case may be;

“employer”, in relation to an employee, means 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 subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;”

8. Deliberations

The question for consideration by the Court is whether the tri-partite relationship which exists between a home tutor, the parents (or legal guardians of a child) and the Department can be construed as involving a contract of employment between the home tutor and the Department of Education for the purposes of the 1994 Act.

Several authorities addressing how, as a matter of law, to characterise the relationship between a teacher and the State, where the teacher’s salary is paid by the State, were opened to the Court. In Minister for Education and Skills v Anne Boyle [2018] IESC 52 - concerning ateacher’s employment status for the purposes of the Protection of Employees (Part-Time) Work Act, 2001 - Clarke CJ (as he was then) noted that: -

“…There are a wide range of situations where, to a greater or lesser extent, a third party may be said to provide the funding for a contract of employment…the degree of control over financial terms and conditions may vary from case to case. Most third parties (including the State in this context) which provide funding are likely to at least impose some relatively detailed conditions as to the financial terms on which employees whose contracts may be funded out of a financial provision made are to be employed. Such funders are unlikely to give a blank cheque to the organisations which they support. There are likely, therefore, to be many cases where there is at least an indirect funding in substance of a contract of employment and a material measure of control by the funder over the financial terms and conditions of the contract of employment”. (at para 9.2)

In finding that that it was not possible to characterise the relationship between Ms Boyle and the Department of Education and Skills as involving a “contract of service”, Clarke CJ stated: -

“The ordinary meaning of the term “contract of service” implies an arrangement whereby one party agrees to work for the other and, subject to the terms of the contract, under the control of that person as to how they carry out their work”. (Para 9.13).

More recently, in The Revenue Commissioners and Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24 the Supreme Court - in assessing the employment status of delivery drivers for the purpose of income tax – laid down a 5-step process to determine whether the contract in place between those parties was one of service or one for services by reference to the following five questions: -

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

(ii) 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?

(iii) 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?

(iv) 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.

(v) 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.”

In Karshan, Murray J noted (at para 221) that the first question a decision maker must broach when determining if the parties entered into an employment contract, is whether they have entered into a contract at all, and in cases involving a so-called triangular relationship it may be necessary to very specifically identify which obligations are owed by which party to another.

The Complainant asserts that in the tripartite relationship that exists in this case the only entity capable of fulfilling the role of employer is the Respondent, as it directly pays his wages and effectively controls his conditions of his employment, which reflects a wider moral and practical obligation to maintain consistency in the education provided to children with special needs.

The Complainant contends that the conditions set down for the Home Tuition Grant Scheme replicate matters normally included in a contract of employment in terms of pay and hours of work, and the absence of such provisions as holiday and sick pay is directly attributable to the lack of a written contract of employment and not indicative of self-employment.

The Respondent’s position is that the fact that it controls the terms and conditions for the Home Tuition Grant Scheme, and acts as a payroll agent on behalf of the parents/legal guardians, does not mean that a contract exists between the parties. It contends that the scheme operates solely for the benefit of the home-schooled child and, as teaching hours are assigned to the child, there is no mutuality of obligation for the Respondent to provide work for tutors.

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

The first matter for the Court to consider is whether any contract exists between the Complainant and the Respondent involving the exchange of wage or other remuneration for work. The fact that the Respondent acts as a payroll agent for the payments of the home tuition grant scheme does not in and of itself establish or confer a contractual relationship between the Complainant and the Respondent. 

The facts in this case are largely uncontested. It is accepted that the Department issues a grant approval letter to parents. Home tuition cannot commence until the grant approval letter is received by the parent/legal guardian. The parents/legal guardian are responsible for engaging a home tutor, and responsibility lies with the parents/legal guardian to undertake all relevant checks and vetting to ensure the tutor’s suitability to provide tuition to their child.

The Court heard uncontested evidence from Mr Noonan that the Respondent plays no role in sourcing or hiring of home tutors. It does not assign hours of work to tutors, rather teaching hours are assigned to the child. Payments to tutors are made based on the hours assigned to the child, once those hours are logged and approved by the parent.

The Complainant’s evidence was that parents/legal guardians contact him directly and he informs them of his availability. He can disengage from providing his services at any time, if he so wishes. He does not get paid if tuition is cancelled and the parents/legal guardian of the child are entitled to terminate the delivery of his home tuition services.

By the Complainant’s own admission, he does not engage or enter into an agreement with the Respondent to provide home tuition services. He accepted that the Respondent does not prescribe how the home tuition service is provided or assess the quality of his work.

Having regard to the facts presented in this case, the Court finds that there is no contractual nexus between the Complainant and the Respondent. As a result, the Court finds that there is no contractual obligation between the Respondent and the Complainant that gives rise to a contractual obligation on the part of the Respondent to pay him under the Grant Schemes.

Furthermore, on the facts as presented, the Court finds that the Respondent does not exercise sufficient control over the Complainant by prescribing how the education service is provided or assessing the quality of his work to render the arrangement one that is capable of being an employment agreement.

Having regards to all of the circumstances of this case, the Court finds that the arrangements in place to provide home tuition services are not consistent with a contract of employment between the Complainant and the Respondent.

To come within the protections of the Act, a complainant must be or have been an employee of the Respondent and have entered into, or worked under, a contract of employment with that Respondent. Similarly, a respondent must be the person by whom the individual is or was employed under a contract of employment. In this case, the Respondent’s only obligation is to act as a payroll agent. A contract of employment means a contract of service or apprenticeship, or any other contract whereby an individual agrees with another person personally to execute any work or service for that person. In this case, the Complainant has not personally agreed to execute any work or service for the Respondent.

Based on the facts of this case, the Complainant has not established sufficient facts to support his contention that he entered a contract of service with the Respondent, or that he entered into any other contract where he agreed to personally execute work or service for the Respondent.

Having regard to the facts and authorities presented, the Court cannot find that the Complainant has established the necessary nexus between the parties to maintain his claim under the 1994 Act.

9. Finding

For the reasons set out above, the Court finds that the complaint is not well founded.

The Adjudications Officer’s decision is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
3 September 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Therese Hickey, Court Secretary.