Worker's Rights

EMPLOYEE VS SELF-EMPLOYED

Before I discuss anything else, it is imperative that I set out the difference between an employee and a self-employed person.

It may seem obvious but, in fact, this is an issue which has been up and down the steps of the court a lot over the past number of years. The ramifications for the distinction on the individual concerned are potentially enormous so make sure you read carefully and understand the differences.

Employees are held under a contract OF service. This means that they are contracted to serve at the employer's discretion. The general description of an employee is that they are told what to do by their employer, usually a recurring task, for a set fee, and shown how to do it. They are paid for their time more so than their skill set. A self-employed person is not told how to do their job and is free to accept or reject a contract to do a job. They are paid for their skills is held to be under a contract FOR service and are hired more-so for their skill and experience rather than for their service.

When asked to determine whether a person is an employee or self-employed, the courts will look at all the factors in relation to the arrangement in order to make their determination.

The leading Irish case in this area is Henry Denny & Sons v Minister for Social welfare (1998). In that case the Supreme Court held that a lady serving sausage samples in a shop was an employee based on the overall arrangement.

The factors that the Court will look at when making their decision include the following:

1. Can I send someone else in my place to do the work I was hired to do?

2. Do I have control of the work?

3. Is there a uniform provided?

4. Is it an act of personal service?

5. Who takes the risk?

6. Who gets the profit?

7. Is there a salary or regular wages?

8. Do I pay my own taxes?

9. Can I work somewhere else also?

10. Am I providing my own insurance?

Why is the distinction between employee and self-employed so important?

1. Employees are protected by legislation and, as such, worker's like part-time employees cannot generally be treated less favourably than comparable full-time employees. Self-employed people are pretty much only entitled to rely on breach of contract when they are wronged. Or perhaps Occupier's Liability where an injury occurs.

2. Employers can be held vicariously liable for their employees actions (acts done during the course of their employment). Self-employed people are themselves entirely liable for their own actions.

3. Employees will have preference above other creditors during winding up proceedings.

4. Taxes are taken care of for the employee by the employer. Self-employed people must handle their own tax affairs.

5. Employees are entitled to join a trade union. Self-employed people cannot.

In order for there to be a valid contract of employment there must be 'Mutuality of Obligation' present. This means that both parties have an equal stake in the contract. The employee gets remuneration for their time and labour and the guarantee that work will be provided, and the employer gets the service of that employee. Absent any form of consideration by one party or the other, there cannot be any contract of service.

The leading international case in this field was the recent UK labour law case of Uber BV v Aslam in (2018). In that case Mr Yaseen Aslam and Mr James Farrar claimed that they should be paid the minimum wage under the National Minimum Wage Act 1998 (in the UK) and receive paid annual leave under the Working Time Regulations 1998 (in the UK) while working as drivers for Uber. Uber BV, a Dutch incorporated subsidiary of Uber argued that their drivers were self-employed independent contractors, and that it owed them no worker or employee obligations. Its contracts described Mr Aslam and Mr Farrar as "partners" and stated that "nothing shall create an employment relationship between Uber and the partner". Aslam and Farrar argued that this was a sham.

Under the Employment Rights Act 1996 section 230 (and equivalent sections in the NMWA 1998, both UK legislation) a "worker" who is entitled to the minimum wage or paid holidays is anyone (a) with a contract of employment or (b) anyone who personally performs work but not for a client or customer. Mr Aslam and Mr Farrar contended they were workers (without specifying which type).

The court was scathing of Uber in this case and noted how it had never before seen a more blatant attempt to not refer to an employee as being an employee. The Court of Appeal held in favour of the applicants, Mr Farrar and Mr Aslam. Uber subsequently appealed this case to the Supreme Court and the issue was heard on July 21st 2020 (I recommend clicking the link and watching the appeal session video listed there - riveting stuff!). The decision of the UK Supreme Court on this matter was delivered on 19 February 2021. Click HERE for the full judgment or HERE for a summary of it.

TYPES OF EMPLOYMENT IN IRELAND

Permanent whole-time: This type of employment contract has no end date - usually public service jobs. This is the golden goose of employment contracts. Except for some serious breach of conduct, you can pretty much never be let go.

Contract of Indefinite Duration (CID) -Very similar to a permanent whole-time role. Employees can be made redundant. The majority of full time employees who have been with their employer for more than 4 years will be on a CID.

Fixed Term Contract (FTC) - Also sometimes referred to as Specified Purpose Contracts, where the end date is determined by the occurrence of a specified objective instead of a specified date. After 4 years consecutive and unchanging service an employee under a FTC is entitled to be transferred to a CID unless the employer can show that not to do so is objectively justified or that there was a break in service/service type.

Zero Hour Contracts - No guarantee of work is given. A zero-hours contract requires you to be available for a certain number of hours per week, or when required, or both. Employees on zero-hours contracts are protected by the Organisation of Working Time Act 1997. However, this Act does not apply to work of a casual nature. Zero-hours contracts are prohibited in most cases under the Employment (Miscellaneous Provisions) Act 2018, but there are some exceptions to this rule. Zero-hours contracts are allowed in the following circumstances:

1. Work of a casual nature

2. Work done in emergency situations

3. Short-term relief to cover routine absences

For example, where a member of staff in a care facility must accompany a resident to hospital at short notice, an appropriate substitute worker can be called in to cover under a zero-hours contract. Similarly, schools maintain a panel of teachers to provide substitute cover for the unexpected absence of a regular member of the teaching staff.

Minimum payments:

You must receive a minimum payment if you are called in to work but sent home without work (except in emergencies, exceptional circumstances or short-term relief, for example). You must get pay for 25% of the possible hours or for 15 hours, whichever is less.

New calculations for these minimum payments are set out in the Employment (Miscellaneous Provisions) Act 2018. Your pay should be calculated as either 3 times the national minimum wage or, if applicable, 3 times the minimum hourly rate in an Employment Regulation Order (ERO).

An employee under a zero-hours contract who works less than 25% of their potential hours in any week should be compensated. The level of compensation depends on whether you got some work or none at all:

- If you got some work, your compensation should bring you up to 25% of the possible available hours or 15 hours, whichever is less.

- If you got no work, the compensation should be either for 25% of the possible available hours or for 15 hours, whichever is less.

For example, if you are required to be available for 20 hours per week, but you got no work, you would be entitled to be compensated for 15 hours or 25% of the 20 hours (that is, 5 hours), whichever is less. In this case, 5 hours is the lesser amount.

Banded hours:

Where your current employment contract does not accurately reflect the average hours per week that you actually work over a 12-month period, you are entitled to a banded contract.

A banded contract gives you the right to work an average of the hours in your specified band for 12 months. There are 8 bands covering a certain number of hours per week (for example, 6-11 or 11-16 hours per week).

Casual Labour / Part time Worker- This is intermittent work. A casual worker is a part-time worker who works on a casual basis. Casual part-time workers are people with fewer than 13 continuous weeks’ service who are not in regular or seasonal employment, or who are casual based on a collective agreement. An employee's service in an employment is viewed as continuous, until it ends by dismissal or by the worker choosing to leave. Part time workers are protected under the Protection of Employees (Part-Time Work) Act 2001. The 2001 Act applies to all part-time workers, including casual workers. The entitlement of the part-time employee is generally in proportion (pro-rata) to the entitlement of the full-time employee. However, minimum periods of continuous service are required for the purpose of unfair dismissal and redundancy entitlements.

Objective grounds for less favourable treatment of part-time workers :

Employers cannot treat a part-time employee less favourably than a comparable full-time employee simply because of the fact that they work part-time.

Employers can treat a part-time worker less favourably if they have objective grounds and the difference in treatment is appropriate and necessary for achieving a legitimate business objective. An example of objective grounds may include a part-time worker who is denied health insurance, even though a comparable full-time worker is granted health insurance, because of the disproportionate cost to the employer of providing the insurance to a part-time worker.

However, objective grounds for treating part-time workers less favourably than full-time workers may be different for casual part-time employees. Casual employees are people with fewer than 13 weeks’ service who are not in regular or seasonal employment (or who are casual, based on a collective agreement).

Penalisation of Part Time Employees:

The following actions are considered to be penalisation of an employee:

1. The dismissal of the employee

2. An unfavourable change in the conditions of employment of the employee

3. Unfair treatment of the employee, including selection for redundancy

4. Any other action that is prejudicial to the part-time worker’s employment

UNFAIR DISMISSALS

All dismissals are deemed to be unfair until proven otherwise by the employer. Unfair dismissal is where your employer terminates your contract of employment, with or without notice, or, you terminate your contract, with or without notice, due to the conduct of your employer. This is referred to as constructive dismissal.

The Unfair Dismissals Act 1977-2015 does not actually protect you from dismissal, but it offers a way to appeal against your dismissal after it has occurred. You will have to show that you actually qualify to bring a claim under the legislation. If you do this and your employer accepts that they dismissed you, your employer will have to show that there were fair grounds for the dismissal.

Under this legislation, you may ask your employer for a written statement of the reasons for your dismissal. Your employer should provide this within 14 days of your request. If you are found to have been unfairly dismissed, you may get your job back or, more commonly, you may receive compensation for the loss of earnings caused by the dismissal.

A dismissal is automatically considered to be unfair if you are dismissed for any of the following reasons:

1. Religious or political opinions.

2. Legal proceedings against an employer where you are a party or a witness.

3. Race, colour, sexual orientation, age or membership of the Traveller community .

4. Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth .

5. Availing of rights under legislation to maternity leave, adoptive leave, paternity leave, carer’s leave, parental leave or force majeure leave.

6. Unfair selection for redundancy .

7. Making a protected disclosure (that is, where you raise concerns about possible wrongdoing at work) under the Protected Disclosures Act 2014.

8. Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours.

QUALIFYING FOR UNFAIR DISMISSAL:

To qualify to bring a claim for unfair dismissal, you must meet the following requirements relating to time limits, length of service, employment status and fact of dismissal.

Time limits

You must start your claim for unfair dismissal within 6 months from the date of the dismissal. If you have reasonable cause to delay, you may be allowed to extend this period for up to 12 months from the date of dismissal. However, the reason must be strong and convincing – saying you did not know the law will not be enough.

Under the Unfair Dismissals Acts, the date of your dismissal is the date that the notice you are entitled to expires. If you have worked at least 13 weeks for your employer, you are entitled to a statutory minimum period of notice. Your written contract of employment may set a longer period of notice.

Complaints under the Employment Equality Acts 1998-2015 must be brought within 6 months of the last act of discrimination. However, this period can be extended to 12 months if you have a valid reason for the delay.

Length of service

Normally you must have at least 12 months’ continuous service with your employer before you can bring a claim for unfair dismissal. Continuous service is generally broken only if the employer dismisses you or you terminate your employment. However, there are important exceptions to this general rule on 12 months’ service. Even if you have served for less than 12 months, you may bring a claim for unfair dismissal where you are dismissed for:

1. Trade union membership or activity.

2. Pregnancy, giving birth, breastfeeding or any matters connected with pregnancy or birth .

3. Availing of rights granted by the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the Paternity Leave and Benefit Act 2016, the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carer’s Leave Act 2001 .

4. Making a protected disclosure under the Protected Disclosures Act 2014 .

5. If you have less than 1 one year’s service and your employer has not followed fair procedures when dismissing you, you may be able to make a claim under Section 20(1) of the Industrial Relations Act 1969. However, any recommendation from the Court is not legally binding on the employer.

Inequality based dismissal

Dismissal based on any of the nine grounds for discrimination (discussed further on the Equality Rights page) is illegal under employment equality legislation. These 9 grounds are:

1. Gender

2. Civil status

3. Family status

4. Age

5. Disability

6. Religious belief

7. Race

8. Sexual orientation

9. Membership of the Traveller community

For example, if you have been employed for less than a year you may not be able to bring a claim under the unfair dismissals legislation, but you may be able make a complaint of discriminatory dismissal under employment equality legislation.

Employment status

To be an employee under the law, you must be working for an employer under a ‘contract of service’. This is different from a ‘contract for services’, where a contractor or self-employed worker performs a service in return for payment. If you work for an agency, you can generally bring a claim under the Unfair Dismissals Acts against the employer who has hired you from the agency.

Fact of dismissal

You must have been dismissed in order to bring a claim. The one exception to this is in a case of constructive dismissal, where you resign but claim that your employer’s conduct towards you forced your resignation. If your employer disputes that a dismissal actually took place, you will have to establish that it did. Only then will your claim continue to the next stage of deciding whether the dismissal was fair. This is a matter for your employer to prove.

Who cannot claim for unfair dismissal?

The Unfair Dismissals Acts do not apply if you are:

(a) An employee who is under 16, or an employee who has reached normal retiring age or who is not covered by the Redundancy Payments Acts because of your age.

(b) Working for a close relative in a private house or farm, where you both also live in the same house or farm .

(d) A member of the Garda Síochána (since 4 July 2006, the Acts apply to most State employees).

(e) Undergoing full-time training or apprenticeship.

(f) An officer of education and training boards, a county or city manager, or the chief executive of the HSE.

(g) Employed under a fixed-term/specified-purpose contract – this contract will be in writing and signed by both parties and will state that the Acts do not apply if you are dismissed only because the fixed-term contract has expired or the specified purpose has been completed .

(h) An employee who works outside the State (unless, while the contract is in force, you are resident or domiciled in the State or are domiciled in the State and your employer is resident in the State) .

(i) A statutory apprentice who is dismissed within 6 months after beginning your apprenticeship or within one month of completing the apprenticeship .

(j) An employee who is on probation or undergoing training for up to a year at the beginning of employment, where the duration of your probation or training is specified in the written contract of employment .

(k) An employee who is dismissed while training to qualify or register as a nurse or other specified para-medical employment .

If point (b), (e), (i), (j) or (k) applies to you, you may still claim for unfair dismissal where the dismissal results from:

1. Pregnancy, giving birth or breastfeeding.

2. Availing of rights under the Maternity Protection Acts 1994 and 2004.

3. Availing of rights to adoptive leave or additional adoptive leave, paternity leave, parental leave, force majeure leave or carer’s leave .

If point (a) or (d) applies to you, you may still claim for unfair dismissal where you are dismissed for taking parental leave, force majeure leave or carer’s leave.

If point (d) or (e) applies to you, you may still claim for unfair dismissal where you are dismissed for making a protected disclosure.

You cannot claim under the Unfair Dismissals Acts where your employer informs you in writing when you start work that your employment will end when another employee comes back to work after taking maternity leave, adoptive leave, paternity leave or carer’s leave.

REDRESS OPTIONS:

Once your (former) employer has sent you a written statement explaining the reasons for your dismissal, your claim can continue to the next stage. At this point, your complaint will be referred to a Workplace Relations Commission (WRC) adjudication officer for a hearing to decide whether the dismissal was fair.

The adjudicator has the power to make witnesses attend a hearing and give evidence in cases taken under the Unfair Dismissals Acts 1977-2015. This power came into effect with the passing of The Employment (Miscellaneous provisions) Act 2018.

The Workplace Relations Commission (WRC) is the body legally authorised to hear and make determinations on almost all work-related matters. They offer dispute resolution services, mediation services, advisory services and conciliation services.

Following the Supreme Court's decision in Zalewski in 2021, hearings by WRC Adjudication Officers are now regarded as being the Administration of Justice within the meaning of Article 37 of the Constitution of Ireland (link to Constitution is at the top of this page). Up until this decision, WRC hearings and decisions were held privately and so the public were often not aware of what went on. The Supreme Court's decision means that the parts of the Workplace Relations Act 2015 were rendered unconstitutional and had to be repealed. WRC hearings must now be held under oath and can be publicly accessed through the WRC website. Employer's beware!

(See Arthur Cox's summary of the case HERE)

Where no satisfactory resolution is reached between employee and employer, either party may appeal the matter to the Labour Courts for judicial determination.

WORKERS' RIGHTS