Complainant

Respondent

Parties

Benjamin Aled Hughes

Teresian Junior School

Representatives

Self represented

Rosemary Mallon BL instructed by Áine Haberlin of Mason Hayes & Curran Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00074987-001

31/08/2025

The Complainant submitted the complaint form on 31st August 2025 alleging a breach of the Terms of Employment (Information) Act, 1994 because he says that he did not receive a statement in writing on his terms of employment.

The Complainant gave evidence on his own behalf having taken a civil affirmation and the Respondent relied on legal submissions rather than offering any witness evidence.

A preliminary objection was made by the Respondent to the effect that the WRC lacks jurisdiction to hear this complaint on the basis that the Complainant is not an employee. The Adjudication Officer determined that evidence would be required to establish the status of the employment relationship and the hearing proceeded on that basis.

The Complainant submitted that, although he had invoiced the Respondent as a self-employed contractor, the reality of the working relationship over a period of approximately thirteen years demonstrated that he had been treated as an employee. He stated that he worked the same fixed hours, on the same days, with the same classes, from 9.00am to 1.45pm on Tuesdays and Thursdays throughout his engagement. He contended that the Respondent exercised a significant degree of control over how he performed his work and integrated him into the day-to-day operation of the school.

The Complainant submitted that he was required to attend staff meetings, to meet regularly with the principal, and to engage with management in circumstances similar to other members of staff. He stated that meetings with the principal were routinely arranged outside his contracted hours, typically before the commencement of his teaching day. He further submitted that the Respondent created a school email account for him and added him to the Teams communication system without consultation. He stated that he was expected to use these systems in the same manner as teaching staff and was repeatedly questioned when he did not do so.

The Complainant stated that he received weekly school communications sent to staff, was given access codes for the school grounds and was asked to participate in annual staff photographs. He argued that these obligations were consistent with the treatment of an employee rather than an independent contractor.

The Complainant further submitted that he was required to undertake duties beyond classroom teaching, including preparing curriculum documentation, liaising with external sporting organisations, organising school teams and competitions, and communicating with parents regarding sporting events. He stated that much of this work was performed outside his paid teaching hours and at the direction of school management.

The Complainant contended that the Respondent’s treatment of him was inconsistent with the position that he was self-employed. He submitted that, throughout the entire period of engagement, the Respondent neither sought proof of public liability insurance nor required him to undergo Garda vetting, notwithstanding that he worked directly with children. He argued that this reflected the Respondent’s treatment of him as part of its staff rather than as an independent contractor.

He submitted that he had been required to act and operate as an employee throughout his engagement while being classified and paid as a self-employed contractor and sought appropriate redress in respect of that alleged misclassification and the treatment he experienced during the course of his engagement.

Evidence of the Complainant

The Complainant relied on his written submissions and stated that he felt that he had been treated as an employee of the Respondent. He said that he had a staff email address, attended staff meetings and his pattern of work was a set 8 hours per week. He had a fob to access the grounds, which even the gardeners do not have, and he was paid his hourly rates at the end of every term when he submitted his invoices.

The Complainant emphasised that he does not have any employees and would have substituted his own service for someone else only where the school agreed to it. He said that the school decided which class had a lesson, and when it took place, and therefore exercised control over his activities.

Cross Examination of the Complainant

The Complainant was asked if he provided services in other locations and he accepted that he did.

The Respondent directed the Complainant’s attention to communications between the parties. The highlighted messages stated:

12th December 2019: “Stuart will be in later for Codex”

12th December 2019: “I’m away until Thursday morning so Stuart is covering the PE tomorrow and Katie (football coach) will cover Thursday’s PE.”

13th May 2021: “I have Ariann […] covering the PE classes who works for me and has coached in the school before with Playball. He is garda vetted. Sandra […] will open the store room for him. He has been given his lesson plans and is all organised. Hope that’s all ok.”

3rd January 2023: “I’ve decided to go away tomorrow until Friday 13th so Jack […] is going to cover my classes.

23rd September 2024: “I’m going to Italy on Thursday […] so I will not be there for Thursday. One of the codex coaches who works also in […] will cover my early morning athletics and then do the PE classes also. […] He will sign in and out at reception and I have given him all the details of the classes/times/breaks and the equipment details.”

16th December 2024: “I have texted Peter and he can cover my PE classes tomorrow. […] I am paying him directly so I will put it on my invoice and I pay him. Hope that’s all ok.”

17th December 2024: “[…] going to take a few days off. Talked to Peter and he is happy to cover me on Thursday also.”

The Complainant was asked about the status of the individuals described in the above messages. He confirmed that Stuart was a subcontractor and that he paid him directly. He did not have any recollection of Katie, but he confirmed that Ariann is a subcontractor and that he made payment directly himself. He confirmed that he paid Jack directly as a subcontractor.

An invoice provided by the Complainant dated February 2020 was identified and he was asked if he accepted that the invoice stated “services provided” on it. The Complainant accepted that it did.

The Complainant was asked if he always paid someone who filled in for him and he replied yes.

The Respondent asked the Complainant if he accepted that he was not an employee, that he was a self employed individual. He replied that he put in the invoices and if that’s self employed then that’s what it is.

Concluding remarks

The Complainant stated that he did not disagree with much of what the Respondent’s representative said, but that the Respondent had treated him as an employee by providing a staff email address and asking him to attend staff meetings. He made the point that he was treated as an employee and that was incorrect. In his day to day interactions he was treated like an employee and he hopes that the Respondent can learn not to do that in the future to others.

The Respondent submitted, as a preliminary matter, that the Complainant was not an employee of the Respondent and that, accordingly, the WRC had no jurisdiction to hear or determine the complaint.

The Respondent submitted that the legal approach to determining employment status had been clarified by the Supreme Court in Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24. It contended that the Supreme Court had reformulated and restated the law relating to the distinction between employees and independent contractors and that the five-question test identified in that judgment should be applied to the facts of the present case.

In support of its position, the Respondent submitted that the Complainant operated his own business under the trading name Codex Kids. It was stated that, prior to operating as a sole trader, the Complainant had established Co-Dex Kids Limited in 2006 and had acted as both a director and company secretary until the company was dissolved in 2010. The Respondent submitted that the Complainant continued to trade through Codex Kids and provided services to a number of clients, including another primary school.

The Respondent further submitted that the Complainant operated both Codex Kids and Speed4Sports, offering sports coaching, motor skills development and athletics training to children and young people. It was stated that the Complainant also held the position of Director of Coaching at Mount Merrion Athletics Club. According to the Respondent, these activities demonstrated that the Complainant operated an independent business providing sporting and coaching services to a range of customers.

The Respondent submitted that, under the arrangements between the parties, the Complainant was permitted to operate athletics classes on the Respondent's premises outside school hours without paying rent. It stated that parents paid directly for these classes and that they were entirely separate from the physical education classes provided to pupils during school hours. The Respondent contended that this arrangement was indicative of an independent business relationship rather than employment.

The Respondent further submitted that the Complainant was not required to provide the services personally. It was stated that, when unavailable, the Complainant arranged for replacement coaches to provide the services in his place and that he paid those coaches directly. The Respondent submitted that the ability to delegate or subcontract work was inconsistent with a contract of employment.

The Respondent also submitted that the Complainant rendered invoices in the name of “Aled Hughes t/a Codex Kids” for the services provided. It was contended that invoicing through his business structure was indicative of self-employment and consistent with the operation of an independent commercial enterprise.

Applying the Supreme Court's test in Karshan, the Respondent accepted that the first question, namely whether remuneration was paid in exchange for work, was satisfied. However, it submitted that the second question, concerning personal service, was not satisfied because the Complainant was free to, and did, arrange for substitute coaches to perform the work. The Respondent further submitted that the third question, concerning a framework of control, was also not satisfied. It contended that it did not exercise control over the manner in which the Complainant carried out his coaching activities and that the circumstances were readily distinguishable from those considered by the Supreme Court in Karshan, where significant elements of managerial control had been present.

The Respondent submitted that, even if the analysis proceeded beyond the first three questions, the overall contractual arrangements and factual matrix were consistent with an independent contractor relationship. It argued that the Complainant operated his own sports coaching businesses, provided services to other schools and organisations, invoiced through his business, generated income from independent coaching activities and retained the ability to provide substitutes when unavailable. The Respondent contended that these factors demonstrated that the Complainant was working for himself and not as an employee of the Respondent.

The Respondent submitted that there was nothing in the relevant statutory regime which required any departure from the analysis set out by the Supreme Court. It therefore maintained that the facts clearly established that the Complainant was an independent contractor and not an employee and that the complaint should fail for want of jurisdiction.

Without prejudice to its primary position, and in the event that the Complainant was found to have been an employee, which was denied, the Respondent submitted that any entitlement to redress could arise only under section 7 of the Terms of Employment (Information) Act and that the maximum compensation available under that provision would be the equivalent of four weeks' remuneration.

This complaint alleges a breach of the Terms of Employment (Information) Act, 1994.

Under Section 41 of the Workplace Relations Act 2015, an employee can make a complaint if they believe their employer has contravened any of the employment laws listed in Schedule 5 of the Act. These complaints are presented to the Director General of the WRC, usually using the WRC’s complaint form, and the Director General shall then pass the complaint to the WRC’s Adjudication Service. Section 41(1) says:

An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

The Terms of Employment (Information) Act, 1994 is contained in Schedule 5 of the Workplace Relations Act, 2015 and that is how the above complaint has come to me, as an Adjudication Officer, to examine and carry out all necessary inquiries.

The Respondent’s position is that it was not the employer of the Complainant and that no employment relationship existed between the parties. I must therefore examine the true nature of the relationship between the parties and determine whether, for the purposes of the relevant legislation, the Complainant was an employee and the Respondent an employer.

Section 3 of the Workplace Relations Act, 2015 states that the terms “employer” and “employee” shall be construed as references to employer and employee within the meaning of the relevant enactment or provision concerned. This means that I must look at the definitions of “employee” and “employer” in the Terms of Employment (Information) Act, 1994. That Act states:

“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 theLocal 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;

The Respondent argues that I lack jurisdiction to hear the complaint on the basis that it is not the Complainant’s employer and he did not work under a contract of employment as required by the above definitions.

The Complainant alleges that did not receive a statement in writing on his terms of employment. This is a complaint related to section 3 of the Terms of Employment (Information) Act, 1994 which states that “An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing…” concerning particulars of the employee’s employment. As this is an obligation placed on an employer, I agree that I must therefore first determine if the Respondent is the Complainant’s employer before I can consider the merits of the complaint.

The parties have not provided anything in writing that would constitute a contract of service or a contract for service and I must therefore assess the practical arrangements between the parties to determine whether or not an employment relationship exists.

The leading authority on the question of what constitutes an employment relationship is the Supreme Court judgement in the case of The Revenue Commissioners and Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24.

In considering whether an employment relationship existed between the parties, I have had regard to the approach set out in that case, which confirmed that there is no single determinative test for identifying a contract of employment. Rather, each case must be decided on its own particular facts and by examining the totality of the relationship between the parties.

The Supreme Court undertook a comprehensive review of authorities on determining employment status and then set out a five step framework to aid determination of whether the contract in place between Karshan(Midlands) Ltd and pizza delivery drivers was one of service or one for service. The five step framework set out the following questions for assessment: -

“(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.”

The first three questions operate as a threshold test. If any one of those questions is answered in the negative, a contract of service cannot exist. Only where all three questions are answered in the affirmative should the decision-maker proceed to consider all of the surrounding facts and circumstances in order to determine the true nature of the relationship between the parties.

In carrying out that assessment, regard must be had to both the written or oral terms agreed between the parties and the reality of how the relationship operates in practice. It is also recognised that, in some cases, a relationship that commences as a contract for services may evolve into a contract of service over time where a sufficient degree of dependency develops between the worker and the end user.

While the intention of the parties is a relevant consideration, it is not determinative of employment status for the purposes of employment rights legislation. A person may also have different employment statuses in respect of different engagements, being self-employed in one role and an employee in another.

I must consider, in the first instance, the first three questions of the test.

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

There is no dispute between the parties that the Complainant was paid by the Respondent for the work that he carried out and so the answer to this question is in the affirmative.

(ii)              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?

The Respondent contends that the Complainant did not undertake to provide his personal service and that he was free to, and did in practice, arrange for third parties to carry out the work on his behalf. The Respondent identified a number of occasions on which the Complainant engaged a substitute to perform the services and submits that this is inconsistent with an obligation to provide personal service.

Having considered the evidence, including the messages opened to the Complainant in cross-examination, I find the Respondent's position on this issue persuasive. The documentary evidence demonstrates that the Complainant had the freedom to arrange for another individual to carry out the work in his place and that he exercised that freedom on multiple occasions. This was not a purely theoretical right of substitution but one that was actively utilised during the course of the engagement. Furthermore, the Complainant accepted in his evidence that he paid those who carried out the work on his behalf on a subcontractor basis. These facts are inconsistent with an obligation of personal service and weigh significantly against a finding that the Complainant was engaged under a contract of employment.

I am satisfied that the Complainant was not required to provide his personal service. The evidence established that he was free to engage a substitute to carry out the work and, furthermore, that he exercised that right in practice. As a result, I find that the requirement of personal service, which is a fundamental element of a contract of employment, was not present in this case.

In The Revenue Commissioners and Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24, Murray J. stated at paragraph 236:

“In this regard, I think the right approach is to view the first three questions I have just identified as afilter in the form of preliminary questions which, if any one is answered negatively means that there can be no contract of employment, but if all are answered affirmatively, allow the interrogation of all of the facts and circumstances to ascertain the true nature of the relationship.”

The Supreme Court therefore made clear that the first three questions identified in the Karshan analysis operate as threshold requirements. If any one of those questions is answered in the negative, a contract of employment cannot exist in law, and it is unnecessary to proceed to the wider multi-factorial assessment of the relationship.

As I have found that the Complainant was not required to provide personal service and was entitled to, and did, substitute another person to perform the work, one of the necessary threshold requirements is absent. Accordingly, the relationship cannot be characterised as a contract of service.

For completeness, however, I have considered the broader circumstances of the relationship. Having done so, I am satisfied that there is nothing in the surrounding facts or practical reality of the arrangement that would cause me to depart from that conclusion. The totality of the evidence is consistent with my finding that the parties were not in a relationship of employer and employee.

I therefore find that the Complainant was not an employee of the Respondent for the purposes of the Terms of Employment (Information) Act, 1994 and consequently cannot avail of the statutory protections that are contingent upon the existence of a contract of employment. For that reason, I find that I lack jurisdiction to hear the substance of the complaint.

For the reasons set out above, I find that I lack jurisdiction to make a decision in relation to this complaint on the basis that the Complainant was not an employee of the Respondent at the material time.

Employment relationship