- Civil side (as opposed to criminal)
- part of contract law
~ Governs relationship between employers and employees. The parties have a contract of employment. Law in this area comes from common law, and, mainly, from statute/ EU law. Focus is on protecting and giving rights to employees.
~ Contract can be oral or written (statute asks for it in writing but oral still is valid contract).
~ Terms can be expressed or implied by custom; common law; statue.
~ 1st question to be asked – Have we an Employee?
Employee v Self-employed
|“Contract of Service”||“Contract of Service”|
|Employment Law applies||Employment Law does NOT APPLY|
|Definition = “an individual who has entered work under a contract of employment”||Definition = no statutory onee.g. call out gardener v one @ Kilkenny Castle|
~ Employers duties = *pay wages; * provide work; *safety; *holidays.
~ Employee duties = *available for work; *obey lawful orders; *use reasonable care.
~ Why is distinction between employee v independent contractor important?
- Statutory protection is given only to employees;
- Employer is legally responsible for actions of employee in the law of tort (=“vicarious liable”) and not for actions of self-employed;
- Employer legally responsible for actions of employee in contract law (law of agency);
- In liquidations, employees are preferential creditors and contractors are not;
- Employees paid under PAYE basis and not obliged to account to tax man.
~ 4 Tests to determine is she/he employee ======
1. Control Test = has the employer control over Employee ?
re/ Sunday Tribune
Tierney v An Post
2. Integration Test= how integrated is employee into workplace ?
Re/ Sunday Tribune compared to Kelly v Irish Press
3. Enterprise Test = who bears the financial risk
Tierney v An Post
4. “Economic Reality” Test = hybrid of all tests & more
The courts have recognised that no one test can be decisive in determining employee status. They apply an economic reality test, a hybrid test, which contains elements of all other tests. In Market Investigations v Minister for Social Security (1969) (UK case) Justice Cooke outlined the factors that may be of some importance in determining the status of a worker: (1) the provision of own equipment or whether they supply their own transport; (2) the hiring of helpers; (3) the degree of financial risk; (4) the degree of responsibility for investment and management; (5) whether there is an opportunity of profiting from the sound management in the performance of his tasks; (6) whether they were paid by commission or salary; and (7) whether they identified themselves as self-employed for tax purposes.
Above UK case followed here in Henry Denny case.
There is no definitive test, however, and the determination in each case depends on the nature of the work itself and the relationship between the parties. McAuliffe v Minister for Social Welfare (1994) Mr. McAuliffe, a wholesale distributor of newspapers, contracted with two persons to deliver newspapers on his behalf to retail shops and other outlets. An issue arose as to whether these persons were employed pursuant to a contract of service or under contract for service.
The High Court in deciding that the contracts were for services was influenced by the following facts: –
- The persons provided and maintained their own transport;
- They were remunerated on the basis of a sum per run and were paid monthly against invoices submitted by them to Mr. McAuliffe;
- They were free to carry goods for other persons except they could not carry delivery of newspapers for another supplier when engaged on delivers for Mr. McAuliffe;
- They were responsible for any damage, destruction or loss of goods carried and for any loss occasioned by delay.
The Court went on to say that had the contracts been one of service then one would expect the employee to be paid a weekly wage and overtime and the vehicle to be provided by the employer and the employer to discharge all overheads relating to the vehicle, the employee to be prohibited from using the vehicle for carrying on a delivery business of his own.
There is no real single test that can be used as was reiterated in the very recent Irish case of Min. For Agric. V Barry.
****SEE ———- SUMMARY OF FACTORS TAKEN INTO ACCOUNT TO DETERMINE WHO IS EMPLOYEE
Legislation has been enacted to protect the interests of both the employer and the employee, covering various aspects of employment. Such legislation is contained in the following Acts: –
- The minimum Notice & Terms of Employment Acts, 1973 to 1994;
- The Unfair Dismissals Acts, 1977-1993;
- The Employment Equality Act, 1977;
- The Anti-Discrimination (Pay) Act, 1974;
- The Redundancy Payments Acts, 1967 to 1991;
- The Protection of Young Persons (Employment) Act, 1977;
- The Worker Protection (Regular Part-Time Employees) Act, 1991;
- Payment of Wages Act, 1991;
- The Safety Health & Welfare at Work Act, 1989;
- Maternity Protection Act, 1994;
- Protection of Employees (Temporary Agency Work) Act, 2012.
It is important to note that the above Acts only give protection to employees who work under a “contract of service”. An independent contractor works under a “contract for service” and is not an employee.
AGENCY WORKERS = Consider the position of people who work as “agency workers” i.e. people employed by an employment agency who work for third parties. Do not confuse this with the separate area of AGENCY ( see anon). Discuss agency workers.
– from a firm of Solicitors based in Kilkenny