Engaging services through what has become widely known as the "gig economy" has become increasingly popular in recent years. So, what is the gig economy? It can be described as a working environment that offers flexibility with regard to hours of work, or, in the alternative, a form of exploitation with little or no workplace protection. People who work in the gig economy have agile/flexible jobs instead of (or as well as) more traditional full-time jobs. Instead of a salary, workers get paid for the "gigs" they do, such as food delivery or a taxi journey. It is estimated that some five million people are employed in the gig economy in the UK. In Ireland, it is reported that some 5 per cent of the workforce have constantly varying hours of work (J. O'Connell, "We're Working but we're not Employed" (The Irish Times, 28 October 2017).
Arguably, the benefits to an individual choosing to work in this way include flexibility and control over how they work. Notwithstanding the perceived attraction of this new way of working, it undoubtedly raises questions about the suitability of the current employment law framework in addressing the needs of people actively choosing to work outside of the traditional employment model. "Gig economy" working has sparked much debate, particularly in the UK. This is at a time where the issue of low-paid work and zero-hours contracts are also being debated with reports of workers being exploited and denied rights and entitlements that many would argue they are entitled to enjoy.
In December 2017, the Minister for Employment Affairs and Social Protection published the Employment (Miscellaneous Provisions) Bill 2017. The long title of the Bill describes it as:
"An Act to provide for a requirement that employers provide employees with certain terms of employment within a certain period after commencing employment; to impose sanctions for certain offences; to further provide for a minimum payment due to employees in certain circumstances; to prohibit contracts specifying zero as the contract hours in certain circumstances and to provide for the introduction of banded contract hours; to further provide for prohibition of penalisation".
This article considers employment status generally under Irish law and analyses some of the recent UK decisions on employment status and the gig economy. The interplay with the principles established in both jurisdictions is also discussed.
Employment Status Revisited
It is worthwhile to review briefly the core principles on employment status that have been developed over the years by the courts.
One of the seminal High Court cases in this area is Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare ( I.R. 34). The plaintiff, Ms Mahon, was hired by Henry Denny as a supermarket demonstrator, offering shoppers free samples of products. Ms Mahon's contract referred to her as an independent contractor. This case is often cited as the case which establishes the legal test for differentiating between contracts of service and contracts for service. This "test" is set out by Keane J. in the following terms:
"[I]n general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her."
The High Court ultimately concluded that Ms *11 Mahon was an employee rather than an independent contractor and that the prudent approach was to look behind the contract in place to establish the real relationship that exists between the parties. The court, in this instance, clearly acknowledged that the relationship between the parties was not equal and as such, it was the reality of the situation—rather than the description placed on it in the written agreement between the parties—that required assessment. The level of control that is ultimately exercised by one party over another is often a strong indicator, albeit not in itself decisive, of just how equal or unequal the relationship is.
The Supreme Court in the UK has also addressed this issue in the case of Autoclenz Limited v Belcher ( UKSC 41). The claimants in this case valeted cars on behalf of Autoclenz. The claimants' contracts stated that they were sub-contractors and not employees; that they were not obliged to provide services to the company; and that the company was not obliged to offer work to them. The Supreme Court upheld the decision of the Court of Appeal and cited with approval the court's analysis of the true nature of the relationship:
"[T]he circumstances in which contracts relating to work or services are concluded are often very different from those in which commercial contracts between parties of equal bargaining power are agreed. I accept that, frequently, organisations which are offering work or requiring services to be provided by individuals are in a position to dictate the written terms which the other party has to accept. In practice, in this area of the law, it may be more common for a court or tribunal to have to investigate allegations that the written contract does not represent the actual terms agreed and the court or tribunal must be realistic and worldly wise when it does so.
So the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description."
Following Autoclenz, Elias L.J. in the Court of Appeal in the UK fleshed out the potential significance of the interplay between the description placed upon the relationship, the reality of the relationship and the intention of the parties in Quashie v Stringfellows Restaurant Limited ( EWCA Civ 1735) as follows:
"It is trite law that the parties cannot by agreement fix the status of their relationship: that is an objective matter to be determined by an assessment of all the relevant facts. But it is legitimate for a court to have regard to the way in which the parties have chosen to categorise the relationship, and in a case where the position is uncertain, it can be decisive, as Lord Denning recognised in Massey v Crown Life Insurance. To similar effect are the following observations of Lord Justice Ralph Gibson in Calder v H Kitson Vickers Ltd:
"the fact that the parties honestly intend that between themselves the contract should be a contract for services and not a contract of service is not conclusive, but it is a relevant fact, and ... it may afford strong evidence that that is their real relationship.
It follows, in my judgment, that the fact that the parties here intended that the dancer should have self-employed status reinforces the conclusion of the employment judge in this case."
In Minister for Agriculture and Food v Barry ( IEHC 216), Edwards J. discussed the importance of mutuality of obligation in determining employment status. In this case, the Minister contended that the claimants, who were veterinary inspectors, were independent contractors. The claimants asserted employment rights in the context of seeking redundancy and notice payments.
In addressing the question of mutuality of obligation, Edwards J. held:
"The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract *12 at all or whatever contract there is must be a contract for services or something else, but not a contract of service. It was characterised in Nethermere (St Neots) Ltd v Gardiner,  ICR 612 as the 'one sine qua non which can firmly be identified as an essential of the existence of a contract of service'. Moreover, in Carmichael v. National Power Plc,  ICR, 1226 at 1230 it was referred to as 'that irreducible minimum of mutual obligation necessary to create a contract of service.' Accordingly, the mutuality of obligation test provides an important filter. Where one party to a work relationship contends that that relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of that issue should in the first instance examine the relationship in question to determine if mutuality of obligation is a feature of it. If there is no mutuality of obligation, it is not necessary to go further. Whatever the relationship is, it cannot amount to a contract of service. However, if mutuality of obligation is found to exist the mere fact of its existence is not, of itself, determinative of the nature of the relationship and it is necessary to examine the relationship further." [Emphasis added]
In Mansoor v Minister for Justice, Equality & Law Reform ( IEHC 389), Lavan J. considered the status of the Mr Mansoor who provided medical services to An Garda Síocháná in respect of taking urine samples from prisoners facing charges of driving under the influence of alcohol. Lavan J. held:
"In my view the mutuality of obligation test is not satisfied in this case and that it is not required to decide anything further on this matter. It is clear that the defendants were not obliged to give the plaintiff work. Nor could the defendants possibly predict the number of drink driving offences that may occur on any given night. In addition, it was open to the defendants to call a number of general practitioners to assist them and although the plaintiff, along with a number of other G.Ps. may have been on a contact or duty list, were the plaintiff to declare that he were unavailable for work, he could face no sanction or rebuke from the defendants. He simply would not be paid. The plaintiff performed a set task for a fixed sum. Likewise, if the defendants elected to engage a different G.P. on any given occasion, the plaintiff would have had no reasonable grounds for objecting to this. I therefore find that the plaintiff was at all materials times an independent contractor, engaged by the defendants under a contract for services."
The issue of mutuality was further considered recently by the High Court in the case of McKayed v Forbidden City Ltd ( IEHC 722). Mr McKayed was an Arabic translator engaged by the defendant in its interpretation and translations services business. He claimed he was unfairly dismissed and the High Court, on appeal from the Circuit Court, considered whether he was an employee at the time of his dismissal or whether he was engaged on a self-employed basis. Ní Raifeartaigh J. stated that she was not convinced that "an obligation to provide work arose from the fact that work had in fact been given to [the plaintiff] on a regular basis for a particular period by the defendant". Further, if this approach were correct (i.e. that regular provision of work equated to an obligation to provide work), previous authorities could not have concluded that individuals (e.g. veterinary inspectors, shop demonstrators, casual hotel workers etc.) were anything other than employees because they had all carried out work on a regular basis for a period of time. However, Ní Raifeartaigh J. pointed out,
"that is not how those cases were approached by the various courts which examined them. In other words, the fact that work was given regularly for a period of time is not determinative of whether one party had a legal obligation to provide the other party with work."
Ní Raifeartaigh J. also addressed the plaintiff's contentions in relation to being "on call" and held as follows:
"Finally, the plaintiff asserted that he was 'on call 24/7'. In reality, what seems to me to be the position is that he was liable to receive a telephone call requesting that he carry out some work at any time of day or night. However, he was free to refuse that work if he chose to do so. No person could ever be 'on call 24/7' on a permanent basis, in the normal sense of the phrase 'on call', which means that the person has an obligation to work if so required.
It may well be that if he had been telephoned, the plaintiff would in fact have responded affirmatively on every occasion because he needed the work. However, his factual dependence on the defendant company does not transform the working arrangements between them, legally speaking, into a contract of service.
In the circumstances, I am of the view that the defendant company was not under a contractual obligation to furnish the defendant with any, or any particular, volume of work into the future and that the requisite mutuality of obligation for an employment contract was therefore absent. Accordingly, the plaintiff's situation vis-à-vis the defendant company was not one of an employee and in light of that conclusion, the plaintiff's claim must be dismissed and no further determinations are required in this case."
The right to use substitutes is another feature that will be examined in determining employment status. In the case of Castleisland Breeding Society Limited v Minister for Social and Family Affairs ( IESC 40), the Supreme Court concluded that the inability to use substitutes without the approval of business was not fatal to a finding that an individual is a contractor rather than an employee.
In addressing this point, Geoghegan J. noted:
"The trial judge refers there to 'controls imposed on Mr. Walsh'. But it would have been the obligation of Castleisland to ensure that the testing complied with the statutory requirements. I see no significance whatsoever therefore in the inclusion in the contract of terms which required the approval of Castleisland to any substitute inseminator or to the inability to assign the contract. Indeed even if there were no statutory regulations it would obviously be in the interests of Castleisland's business to ensure competence and, therefore, to include such provision."
In summary, in determining the nature of the parties' relationship, the courts will take a holistic approach not confined to the written terms of the agreement between the parties. In conducting such an evaluation, the courts will look to the respective bargaining power of the parties and whether the written terms accurately record what was agreed (or whether one party effectively imposed a set of terms on the other). Although parties cannot themselves fix the status of their relationship in writing, the courts can look to the written categorisation of the relationship and decide that same is an accurate reflection of the relationship in reality, and as such, the written agreement may be determinative of parties' relationship.
A central tenet of the court's consideration of the relationship of employer-employee is that there must be a mutuality of obligation i.e. that the employer must provide work and the employee must perform duties. However, the regular provision of work does not necessarily equate to an obligation to provide work. Furthermore, the inability to use substitutes will not necessarily mean that the relationship must be one of employer-employee.
The Gig Economy
In the past 18 months, there have been a number of high profile cases before the Employment Tribunal, the Employment Appeals Tribunal and the Central Arbitration Committee in the UK. These cases provide us with a comprehensive overview of how the courts and tribunals in the UK are assessing the complex relationships created by the gig economy.
The Uber Saga
The case of Aslam v Uber BV ( I.R.L.R. 4) has been one of the more high profile cases to come before the Employment Tribunal in London. The Tribunal, when tasked with making a decision on the employment status of Uber drivers, concluded that Uber drivers are workers for the purposes of the UK's Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998.
At the time of the hearing, there were some 30,000 Uber drivers operating in the London area and 40,000 in the UK as a whole. The underlying claims related to unlawful deductions from wages (through an alleged failure to pay the national minimum wage) and in respect of a failure to provide paid leave.
In this case, the Tribunal analysed Uber's *14 business model and forensically assessed the terms between Uber and the driver, including a welcome packet used for "onboarding" new drivers. The Tribunal went on to make the following findings of fact:
- Drivers are not required to make any commitment to work. However, when a driver signs into the app, this usually signals that they are coming 'on-duty' and available for work.
- Drivers supply their own vehicles and are responsible for all running costs, including the licence costs.
- Passengers book trips through the Uber app. On receipt of a passenger request, the app locates a driver logged into the app. The selected driver has 10 seconds to accept the booking through the app, failing which Uber assumes that they are unavailable and locates another driver.
- If a driver fails to accept a series of bookings, this can result in losing his account status. Acceptance statistics are recorded and Uber warns, "you should accept at least 80% of trip requests to retain account status."
- Once a driver accepts a booking, Uber places the driver and passenger in direct contact, through the app.
- The driver is not made aware of the destination until collecting the passenger. The app provides detailed directions to the destination and the driver is expected to follow those directions unless the passenger stipulates a different route.
- At the end of the trip, Uber's servers calculate a recommended fare, based on GPS data from the driver's phone. The driver cannot negotiate or agree a higher fare
- The passenger pays the fare directly to Uber, via the app. Uber subsequently pays drivers, weekly in arrears, in respect of the fares they have earned, minus a "service fee" of 20 per cent to 25 per cent for connecting the driver to the passenger through the app.
- Uber operates a rating system. If a driver falls below a set average rating Uber can withdraw the driver's access to the Uber app (effectively preventing him or her from being an Uber driver).
- Uber takes the risk in some matters such as certain passenger fraud.
- Uber deals with any fare complaints, often without requesting any comment from the driver.
- Drivers are not required to wear any uniform and are not permitted to display the Uber logo in the London area.
In arriving at its decision, the Tribunal commented on the "remarkable lengths" to which Uber had gone to compel agreement with its description of itself and the analysis of its legal relationship with drivers. The Tribunal flatly rejected that the terms on which Uber relied corresponded with the reality of the relationship—quoting Lady Gertrude in Hamlet, "the lady doth protest too much". The Tribunal noted that Uber had previously made numerous comments in "unguarded moments" outside the case before the Tribunal, which ran contrary to the case it presented before the Tribunal. One example cited by the Tribunal was written evidence given to the Greater London Authority Transport Scrutiny Committee by Uber where it had referred to drivers receiving "commission". The Tribunal was satisfied that this reinforced the claimant's simple case that Uber runs a transportation business and employs drivers to that end.
Uber's case was that it is a technology platform providing business opportunities for drivers. The Tribunal was not convinced by this and concluded that it was "unreal to deny that Uber is in business as a supplier of transportation services" and contrived to regard Uber as working for the drivers.
The contract between Uber and the drivers was not considered to be at "arm's length between two independent business undertakings".
The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common platform was, in the Tribunal's mind, "ridiculous".
In light of the above findings, the tribunal concluded that the drivers are workers of Uber for as long as the driver:
- has turned on the app;
- is ready and willing to accept fares; and
- is in the territory in which they are authorised to drive.
The Uber appeal
Uber appealed the decision of the Employment Tribunal to the Employment Appeals Tribunal ("EAT"). The EAT delivered its decision on 10 January 2017, dismissing Uber's appeal. Of interest in this decision was the EAT's consideration of Uber drivers being capable of accepting a possible assignment from another private hire operator (PHV). The EAT was satisfied that the Tribunal had grappled with the issue and had concluded that this was not fatal to the respondents' case. The EAT accepted the Tribunal's analysis of the requirement to be "on duty", which essentially required drivers to "accept at least 80 per cent of trip requests". This clearly, although not specifically called out as such in the decisions of both the Tribunal and the EAT, creates a mutuality of obligation which, under Irish law, is of course a critical consideration in determining employment status.
In late November 2017, Uber sought leave to appeal the decision of the EAT directly to the Supreme Court thus bypassing the Court of Appeal. It has been reported that Uber's request has been denied and the matter will be heard by the Court of Appeal at first instance (H. Boland, "Uber request to take drivers' rights case directly to top UK court rejected", The Telegraph, 4 December 2017.)
Uber – The European angle
The opinion of Advocate General Szpunar was recently analysed in this journal (C. O'Mara, Uber: Digital Platform or Transport Company? The boundaries of the gig economy in employment law ((2017) 14(3) I.E.L.J, 94-98). This opinion followed two separate referrals from France under the ECommerce Directive (Directive 98/34, as amended, and Directive 2000/31) (Uber France SAS (Case C-320/16)) and Spain under the Services Directive (Directive 2006/123/EC) (Asociación Profesional Elite Taxi v Uber Systems Spain SL (Case C-434/ 15)) relating to the Uber business model. Advocate General Szpuner concluded that Uber was engaged in the "supply of transport which is the main supply and which gives the service economic meaning."
The Court of Justice of the European Union (the "CJEU") delivered judgment on 20 December 2017 in the case arising from the referral from Spain. The CJEU in Asociación Profesional Elite Taxi (C-434/15) was essentially asked whether the activity of Uber—the provision of a paid service, by means of a smartphone app connecting non-professional drivers using their own vehicles with persons wishing to make urban journeys—should be qualified as a service in the field of transport or as an information society service. The CJEU concluded that Uber was an,
"intermediation service ... the purpose of which is to connect, by means of a smartphone application and for remuneration, non-professional drivers using their own vehicle with persons who wish to make urban journeys, must be regarded as being inherently linked to a transport service and, accordingly, must be classified as 'a service in the field of transport'".
The import of this decision is that Uber is subject to EU regulation as it relates to the transport sector. It should be noted that there are no common rules at EU level covering the type of services provided within Uber's business model and, as such, Member States enjoy a wide margin of discretion in regulating the conditions under which these types of services can be provided.
While this decision has no bearing on the employment status of Uber drivers, it does represent the CJEU setting down a firm marker to Uber to play by the rules!
In Dewhurst v City Sprint (2202512/2016), the Employment Tribunal in the UK considered if a bike courier was a worker under the Employment Rights Act 1996 s.230(3), rather than being self-employed, and was therefore entitled to paid annual leave under the Working Time Regulations 1998.
The Tribunal placed significant emphasis on the nature of the control exercised over Ms Dewhurst in arriving at its decision. The Tribunal concluded that Ms Dewhurst was a worker, noting the following:
- Citysprint had the power to regulate the work available. *16
- Ms Dewhurst could not improve her business opportunities through additional efforts.
- There was an inequality of bargaining power.
- The ability to appoint substitutes was inoperable due to the insurance provisions that Ms Dewhurst has obliged to fulfil thus rendering the right to substitute a sham.
- Ms Dewhurst had little autonomy to determine the manner in which the services were performed and no chance at all to dictate its terms.
- Ms Dewhurst was described as a "worker in a subordinate position ... [and] a typical example of the protection needed from the Working Time Directive".
On 14 November 2017, the Central Arbitration Committee (the "CAC") delivered a decision in the matter of Independent Workers' Union of Great Britain (IWGB) v Roofoods Limited T/A Deliveroo (2017 WL 05632856). The IWGB had sought to have Deliveroo drivers recognised as workers. As in Uber, such a determination which would have granted them rights such as the minimum wage and sick pay, as well as allowing them to unionise.
The CAC analysed how the parties conducted themselves in practice and made the following findings:
- Once a rider has signed whichever contract was in force at the time, they can download the Deliveroo application (the "app").
- There is no expectation or requirement that riders will indicate in advance when they intend to work. Such riders are not subject to any form of schedule. Instead they operate exclusively on a "free log-in" basis, meaning they can log in and log out of the Deliveroo app whenever they choose during "opening hours" (those hours being when restaurants are open and customers are making orders – a rider could not, for example, log in at 3am in an area where all restaurants are closed), subject to the requirement that they perform at least once every three months.
- Riders are paid on a "fee per delivery" ("FPD") basis, also sometimes known as "drop fee".
- The app defaults to marking the rider as "Unavailable" for deliveries, but by swiping right on their screen they can make themselves "available", if the zone they are in is open at that time. They can swipe left to make themselves "unavailable" at any time, unless they have already accepted an order which has not yet been delivered. If riders do not want to perform any more deliveries, they can click "this is my last order" and no more deliveries will be assigned to them.
- When a rider accepts an order, they will be told the details of the restaurant or partner where the food or drink is to be collected from via the app. The app will suggest a route for them, but they are not obliged to follow it. Before accepting the job, the rider will not know how much food is to be delivered or the delivery address.
- Riders are free to sign up with other food delivery organisations such as Uber Eats, and Deliveroo does not object to this. Deliveroo has advised riders: "We know that the vast majority of riders work with other companies as well as Deliveroo, including our competitors. That is fine with us: as an independent contractor you are free to work with whoever you choose".
- There is no policing by Deliveroo of a rider's use of a substitute should he or she choose to use one. Deliveroo simply relies on the contractual terms with the rider. In practice substitution is rare as there is no need for a rider to engage a substitute. If the rider does not want to accept a job or be available for work, he or she need not log on to the app, or if they are logged on, they do not need to make themselves available, and if they are logged on and mark themselves as available they are not under any obligation to accept any jobs offered. There are no adverse consequences for them.
The CAC analysed the question of substitution in great detail and heard evidence from one rider that he regularly engages a substitute by giving a friend his app to download and password details. When pressed to explain why he did so, he eventually *17 explained that he took 15-20 per cent of the fee he received from Deliveroo, passing on the balance to his friend: he was exercising the substitution provisions for his own potential profit. Notably, Deliveroo does not object to this practice.
The CAC concluded:
"In light of our central finding on substitution, it cannot be said that the Riders undertake to do personally any work or services for another party. It is fatal to the Union's claim. If a Rider accepts a particular delivery, their undertaking is to either do it themselves in accordance with the contractual standard, or get someone else to do it. They can even abandon the job part way having only to telephone Rider Support to let them know. A Rider will not be penalised by Deliveroo for not personally doing the delivery her or himself, provided the substitute complies with the contractual terms that apply to the Rider." [Emphasis added]
The case of Castleisland Cattle Breeders is referenced above. As discussed, in that case, the Supreme Court determined that restrictions placed on appointing substitutes did not automatically render the relationship that of employer/employee. A more sophisticated analysis than that is required. It is submitted that the ease with which substitutes can be appointed will be a factor that will and should be considered owing to the fundamental nature of the relationship of mutual trust and confidence that exists between an employer and employee. The weight that will be placed on any restrictions in appointing substitutes is likely to vary depending on the nature of the work being undertaken. Conducting artificial insemination, which is subject to regulatory control (as was the case in Castleisland), cannot be compared to the business of delivering food from takeaways and restaurants to consumers' homes or places of work. Tighter controls in relation to substitutions are to be expected in more heavily regulated industries. The corollary of this is that courts are likely to attach greater weight to substitution control for less regulated and less prescriptive roles.
Equally, in Citysprint, while the right to appoint substitutes existed on paper, the Tribunal quickly disposed of this as having any impact on the assessment of the relationship in circumstances where there was no practical reality to such a provision.
It should be noted that there is no appeal from a decision of the CAC to the EAT or Court of Appeal. In the UK, CAC decisions have persuasive value but they are not binding on tribunals.
Worker v Employee
In Uber, Deliveroo and City Sprint, the Tribunal, EAT and CAC were tasked with determining if the Uber and Deliveroo drivers were "Workers". Worker is defined in s.230 of the Employment Rights Act 1996 as follows:
In this Act 'contract of employment' means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.
In this Act "worker" means an individual who has entered into or works under (or, where the employment has ceased, worked under) —
a contract of employment, or
(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;
and any reference to a worker's contract shall be construed accordingly."
The Employment Rights Act 1996 defines "contract of employment" and "employee" as follows:
"(1) In this Act 'employee' means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.
(2) In this Act 'contract of employment' means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing."
Individuals in the UK have different rights and obligations depending on which category of employment status they fall into: employees, workers *18 or self-employed. Employees have all the rights of workers but can also claim unfair dismissal, statutory notice periods, redundancy pay etc. Self-employed persons have no entitlement to employment protection.
While UK legislation has, to a certain extent, caught up with the modern employment landscape, Ireland is still somewhat lacking in this regard. The "worker" category does not exist under Irish law for the purpose of providing rights to holiday pay, working time rights and notice. While "worker" is defined in certain pieces of Irish legislation such as the Protected Disclosures Act 2014, it confers limited protection in the context of making disclosures under the Act. The concept of "worker" also exists in the Employment Equality Acts, however, the term is undefined and does not confer any status separate to that of an employee.
What does all of this mean? It has been well canvassed that in determining employment status each case has to be assessed by reference to its own facts and that a number of factors will be looked at such as personal service, control, integration, mutuality of obligation and financial risk.
It would appear that some factors, where they can be demonstrated with certainty can be definitive—or at least provide a greater degree of certainty—in arriving at an assessment in terms of employment status. These are mutuality of obligation and substitution. Paying lip service to these factors will not cut it and a factual analysis of what is happening or is capable of happening on the day-to-day basis within the confines of the contractual relationship will be required. Where it can be genuinely established that there is no mutuality of obligation then this should, in the main, be sufficient to characterise the relationship as that of a contract for service. If the question of mutuality is blurred, then the other factors have to come into play. Similarly, where there is no requirement to provide personal service this, by and large, indicates an equality of bargaining power that has been absent from many of the cases analysed above.
The recent UK decisions build usefully on the relatively extensive jurisprudence that exists in this jurisdiction on employment status generally. They do not, in the writer's view, represent a significant departure from any of the current principles already enshrined in the jurisprudence of this jurisdiction.
This journal may be cited as e.g. (2005) 2 I.E.L.J. 1 [(year) (Volume number) I.E.L.J. (page number)] Irish Employment Law Journal 2018, 15(1), 10-18
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.