We have previously posted on the difference between a contract of service and a contract for service, however a recent case provides a good illustration of how Tribunals approach this query also. The issue at hand in this case was if the claimant was an employee of the company or a sub contractor for the company, where he worked as a Dental Associate.
The Case in question relates to Employee -v- Employer UD512/2011, and the determination in this case is well worth a read.
The Tribunal notes that whilst in most cases it is obvious whether a person is an employee or self-employed, it can sometimes be difficult to assess whether an individual providing services to another person or business can properly be described as self-employed....What parties call their relationship is not conclusive, it is the reality of the relationship that matters, and that in previous case-law statements such as "you are deemed to be an independent contractor" etc. in the contract should be disregarded on the basis that they represent the opinion of the parties and are of minimal value in deciding the work status of a person.
The Tribunal looked at two of the main cases in Irish law on this, the Barry Case and the Denny Case and adjudged that the following points would be helpful to consider
- all possibilities should be investigated in determining the nature of the work relationship between the parties;
- The so call"enterprise test" (see Barry case) is not determinative of the issue and that it is incorrect to assert that questions of control and integration are to be regarded merely as elements to be taken into account in applying the enterprise test;
- compare the question of enterprise to questions of control and integration as such a comparison will assist a court or tribunal with valuable assistance in drawing the appropriate inferences from primary facts and no one factor is subsumed by another;
- there is no exhaustive list and there might be other factors which might also assist.
Impact for Employers
What an employer can take from this is that it is the totality of a relationship that must be looked at and no one factor will say they are or are not an employee/subcontractor. The Tribunal states "whether a worker is an employee or self-employed depends on a large number of factors. The Tribunal wishes to stress that the issue is not determined by adding up the numbers of factors pointing towards employment and comparing that result with the number pointing towards self employment. it is the matter of the overall effect which is not necessarily the same as the sum total in all individual details. Not all details are of equal weight or importance in any given situation. When the detailed facts have been established the right approach is to stand back and look at the picture as a whole, to see if the overall effect of a person working in a self-employed capacity or a person working as an employee in somebody else's business. "
Further Reading click here.
