EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Helen O'Hanlon UD1096/2014
(claimant)
against
Ulster Bank Ireland Limited
(respondent)
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr. E. Handley
Mr. N. Dowling
heard this claim at Dublin on 7th October 2015 and 4th December 2015 and 29th January 2016
Representation:
Claimant: Mr. Mark O’Connell B.L. instructed by Mr. Frank Nyhan, Frank Nyhan
& Associates, Market Square, Mallow, Co. Cork
Respondent: Mr. Ger Connolly, Mason Hayes & Curran, Solicitors, South
Bank House, Barrow Street, Dublin 4
Preliminary issue:
Summary of evidence
Both parties made extensive written (filed) and oral (noted) submissions to the hearing.
A preliminary issue arose as to whether the claimant was employed on a contract of service or a contract for services. The claimant gave evidence and told the Tribunal that she was employed by the respondent, a banking enterprise, through her IT consulting company, as a Project Lead. She commenced her working relationship on 31st July, 2006 and remained working with them until 28th February, 2014. Initially she was employed on a series of short contracts through a recruitment agency. From 1st December, 2007, the claimant was asked by the respondent to work directly for the bank. From December, 2007 onwards, the claimant’s company was employed by the bank.
According to the claimant, her work took on the nature of a permanent contract of service. The claimant was paid through her IT consultancy company. She was not paid for annual leave, although she had to seek approval in advance, nor did the respondent deduct the claimant’s tax and PRSI. Sick pay was also not an entitlement.
The claimant maintains that she was a fully integrated member of staff regarding the business and social functions of the bank. She worked exclusively for the respondent during the eight years of her employment. The claimant attended key meetings, including crucial meetings with the Financial Regulator. She also used the respondent’s premises and equipment. The claimant indicated that she could not work for another organisation.
At no stage after 1st December, 2007 was the claimant ever asked to sign a contract of employment and worked for up to 50/60 hours per week for the respondent company.
The claimant explained that she wanted certainty regarding her employment. The numerous efforts that she made to speak to the bank were completely stonewalled and her e-mails were not replied to. She asked verbally to meet and discuss her position and she was told “No”. She explained that the bank was trying to downsize and it suited the bank not to regularise her employment. She explained that it was cheaper for the bank not to have her as a permanent employee, for example pension costs.
She was told at one time that she would not be provided with permanent employment and she would have to go elsewhere if she wished permanent employment.
Regarding her integration in the company the claimant maintains that she was integrated from day one. She sat with the whole work team. She was provided with a bank computer and had access to the banks e-mail. She was invited to all team events and was included in all team meetings. She had access to sensitive information. The claimant explained that the senior management trusted her and the support staff worked parallel with her.
She organised Christmas parties and a race meeting. She gave speeches at events and was involved in social events. She was also involved in a group involved in women’s affairs for development etc.
Regarding her being asked to stay on with the bank and her second contract she explained that CK the head of treasury at the time asked her to stay on. CK contacted the agency (VR) to arrange the paperwork. The same happened again regarding her third contract. Also previous to this in late November 2007 CK and DC asked her if she would like to remain on for a year.
The claimant was asked about control and mutuality of obligation. She explained that everything that she did she needed to provide updates and had to obtain approval. The bank had total control over her work. The bank determined her rate of pay. She looked after her own pension. She did not have professional insurance and was not asked by the bank to provide professional insurance.
The bank did ask her about a contract between her and a third party (G) and also to provide insurance but she did not obtain insurance and she was not perturbed by not having insurance. Regarding sick pay she worked long hours circa 50/60 hours per week so when she was sick for a few days she was paid for those days. She had not asked for sick pay but the bank told her that because she had worked long hours she would be paid for those days.
Regarding substitution, she explained that she always completed her work and that there was no way that she could have appointed a substitute for herself. She did not have other people working for her.
Regarding her work equipment, it was provided for her by the bank. She did not work for anyone other than the bank; she worked solely for the bank. She was paid a daily rate and was not on a fixed term contract for specific tasks.
Regarding holidays, she had worked 35 extra days during a three month period so the bank agreed she could take 17 days leave and be paid. She was not paid holiday pay but was paid holidays in lieu of time worked. When projects were finished she took time off but was not paid holiday pay. The claimant in clarifying to the Tribunal agreed that she was not paid holiday pay.
Regarding reporting, she reported to the treasurer of the bank.
In cross-examination, the claimant agreed that she was paid through her IT consulting company. She was an employee of her own company. She agreed that the earlier contracts covering the period from 31st July 2006 up to 30th November 2007 were contracts for services via a recruitment agency. There were seven contracts over this 16 month period. There were other contractors in the treasury department during her period there. The claimant was never told she could not work for another bank but it was ‘not the done thing’ and ‘would not be acceptable’. She was paid a daily rate of pay and was never paid a bonus. The claimant indicated that she received 17/18 days time in lieu of excess hours worked by her and also received sick pay on this same basis. She had bank staff reporting to her at times. The Group Treasurer told her what work to do.
RH, who was the Treasurer at the time gave evidence on behalf of the respondent. He commenced his employment with the bank in June 2012. RH told the Tribunal that the claimant was a contractor from the bank’s point of view. The reason the claimant was on contract for eight years was because she was working on multiple projects. The claimant raised the issue of her employment towards the latter end of her time with the bank. When RH consulted with the HR department in relation to the claimant’s employment, he was told that she was a contractor. RH accepted the situation as regards the claimant’s status. It was not a cost decision. RH disagreed that it was less expensive to hire the claimant as a contractor as opposed to an employee. Time in lieu was not a normal arrangement with contractors. RH only realised the claimant had no contract during her last months with the bank.
Determination
At the commencement of the hearing the Respondent's Representative submitted that the Tribunal did not have jurisdiction to hear the claim because the claimant was not an employee as defined in the Unfair Dismissals Act 1977 but that she was an independent contractor. The Tribunal could not rule on this application without hearing all the evidence relating thereto. This is clear from a number of High Court decisions referred to hereafter, and the Supreme Court Case of John Barry, Conor O’Brien, Mary O’Connor, Michael Spratt, Ciara Dolan and The Minister for Agriculture and Food [Appeal No. 86/2011], (hereinafter “the Barry Supreme Court Case”). The Judgement of MacMenamin J. in this case clearly puts to rest once and for all that it:
“was for the Employment Appeals Tribunal itself to determine, on the facts, whether or not an employment relationship existed between the parties”. MacMenanin J also suggested that (i) the parties should agree a case management where the parties prepare “an issue paper” identifying the questions to be identified by the Tribunal; (ii) that the parties prepare written submissions;[and that] (iii) The Tribunal apportion such time as may appear appropriate for oral submissions. The Tribunal also decided to hear relevant evidence from the parties. In the Barry Supreme Court Case the court also ruled that: “the case whether the vets were employed by the Respondent, or were instead self- employed persons doing shifts at the Mitchelstown meat plant is a matter of fact for the Employment Appeals Tribunal on the rehearing of the matter”.
The parties agreed the following issues, as being relevant to the Tribunal’s decision: [was the claimant] in business on her own account and/or integration; relevant contracts; mutuality of obligation; the intention of the parties; control; actions of claimant; taxation. The Tribunal did not consider itself confined to the issues agreed between the parties and also indicated that it would have regard to the following: pension entitlements; sick pay; substitution; whether the profit which she derived was dependent on how she carried out her work; was she paid for holidays; did she have support staff; how and where she did the work; could she engage someone else to do the work instead of her. The Tribunal did not close its mind to other factors which might arise during the hearing of the case. All these matters will be dealt with below after the Tribunal has considered the relevant case law.
Relevant Case Law:
The High Court decision in the case of The Minister for Agriculture and Food V Barry and Others 1998 ELR 36 (7th July 2008) (hereinafter referred to as "the Barry Case") contains a detailed analysis of the jurisprudence on the tests which should be considered in deciding whether a person is working under a Contract for Service [Independent Contractor] or a Contract of Service [Employee]. It is appropriate that we examine ‘the Barry case’ in detail as it is relevant to the case brought by the claimant. In ‘the Barry case’, the Court allowed the appeal by the Department of Agriculture and Food against the decision of the Employment Appeals Tribunal (EAT) which had found that five Temporary Veterinary Inspectors (hereafter "the TVI's) were employees and accordingly entitled to payments under the Redundancy Payments Acts 1967-2003 and Minimum Notice and Terms of Employment Acts 1973-2001 following the closure of the Galtee Meats Plant at Mitchelstown, Co. Cork (hereafter "Galtee").Mr. Justice John Edwards found that the TVIs were engaged as independent contractors, in other words, under contracts for service rather than as employees under contracts of service. The Department had argued that the TVIs were private veterinary practitioners who were also in business on their own account, and that they could and did continue in private practice along with undertaking temporary work for the Department. Further, the TVI’s remuneration was paid on an hourly fee basis at rates fixed between the Department and their union, Veterinary Ireland. The TVI's paid PAYE and PRSI and each was issued with a P60 annually. The TVI's were not obliged to maintain their own professional indemnity insurance. The TVI's did not charge VAT, and were not paid VAT even though VAT was chargeable on TB testing.
This case has had an eventful legal journey with two hearings before the Employment Appeals Tribunal (“EAT”), two hearings before the High Court and following last year’s Supreme Court decision now goes back to the EAT for a third time. EAT (1) On the preliminary point of whether the TVIs were employees or contractors, the EAT found that the TVIs were employees. It based its decision on the traditional tests set down in the Henry Denny case (a previous Supreme Court case on employment status and which we will look at hereafter) and other decisions of the Courts which identify a number of tests to be applied in determining whether workers are contractors or employees. On appeal to the High Court (High Court 1) by the Minister on a point of law, Edwards J ruled that the EAT had “erred in law” by failing to have regard to all the possibilities in determining the nature of the working relationship between the parties. He also decided that the finding of the EAT that there was “mutuality of obligation” between the Minister and the TVIs (i.e. that the Minister was obliged to provide work to the TVIs and that the TVIs were obliged to carry it out), was made on a “flawed and untenable basis”. Furthermore, he found that the EAT had misinterpreted the decision in the Henry Denny case and should have used the full range of legal tests in coming to the conclusions that they did. The matter was sent back to the EAT (EAT 2) for re-hearing on the basis of the facts of the case and the judgment of Edwards J in the first of the High Court decisions. On that basis, the EAT felt compelled to hold that the vets were independent contractors. The TVIs appealed the second decision of the EAT to the High Court (High Court 2) on a point of law on the basis that it had “erred in law” on a number of grounds, including in finding that it was bound to reverse its decision based on the earlier decision of the High Court. The High Court found that there was nothing in the additional evidence produced by the TVIs which was of such importance that no reasonable Tribunal, having heard it, would be entitled to conclude that the TVIs were engaged other than under a contract for service i.e. contractors rather than employees. The Judge did not deal with the matter as to whether the EAT was bound by the decision of the High Court in arriving at its determination. This decision was appealed to the Supreme Court which overturned the High Court decision and held that the EAT was in error in its second determination. The matter was sent back to the EAT for re-hearing on the basis of the facts of the case and the judgment of Edwards J in the first of the High Court decisions.
The fact that this case is going on for eleven years is testament to the complexity of deciding whether a person is an employee or an independent contractor. It is extremely difficult to decide which is which. Some court/body has to decide it and the Supreme Court has clearly ruled that it is the Employment Appeals Tribunal which must decide it.
Edwards J in High Court 1, considered the following relevant matters, which the Tribunal found useful, in reaching his decision:
Mutuality of Obligation
This exists where the employer is obliged to provide work for the employee and the employee is obliged to perform that work as in a normal employer/employee relationship. Whilst the Court found that it was appropriate to apply the mutuality test, this does not mean that an implied contract of mutual obligation existed. Rather, the High Court agreed with the Department’s view that they had no control over the level of work available to the inspectors, as this was within the control of Galtee.
"The so called Enterprise Test"
Edwards J analysed the relevant jurisprudence in relation to "the so called Enterprise test". This test examines whether or not a person is in business on his/her own account. This test originated in a UK decision of Market Investigations –v- Minister for Social Welfare and was adopted by the Supreme Court in this Jurisdiction in the case of Henry Denny and Sons Ireland Limited V The Minister for Social Welfare (‘the Denny case’) and the application of the ratio decidendi in that case and in the subsequent decisions Tierney –v- An Post (2000); Castleisland Cattle Breeding Society Ltd –v- The Minister for Social and Family Affairs (2004) and the Electricity Supply Board –v- The Minister for Social Community and Family Affairs & Others (2006). Mr Justice Edwards noted that a very important "particular fact" common to these cases was the existence of a contractual document stating that the relationship between the parties was a contract for services. The fact that the parties agreed that the description of their relationship should be considered a contract for services should not be considered decisive or conclusive. Mr Justice Edwards considered the judgements in ‘the Denny case’ and referred to the statement of Keane J that when determining whether a particular employment relationship is to be considered a contract "for service" or "of service" [that] "each case must be considered in the light of its particular facts and of the general principles which the courts have developed" Edwards J quoted the following paragraph from Keane J in the Denny case:
"It is, accordingly, clear that, while each case must be determined in the light of its particular facts and circumstances, in 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"
Mr. Justice Edwards criticised the misinterpretation of this passage which arose from "misguided attempts to divine in the judgement the formulation of a ‘one size fits all’" approach to this difficult question. He went on to say that it was unhelpful to speak of a "control test", an "enterprise test" a "fundamental test" an "essential test", a "single composite test" as none of these "tests" can be relied on to deliver a definitive result. None of these tests were conclusive or exhaustive. Accordingly, this Tribunal should not reduce its consideration to a few tests. It is clear from 'the Barry case' and from Denny that all possibilities must be investigated before coming to a conclusion. This is what the Tribunal must now do.
Moreover, the Barry case further stipulated that in deciding whether a person is working under a Contract of Service or a Contract for Services a Court or Tribunal should have regard to the following:
(a) all possibilities should be investigated in determining the nature of the work relationship between the parties;
(b) the "so called enterprise test" 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;
(c) 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 the primary facts and no one factor is subsumed by another;
(d) there is no exhaustive list and there might be other factors which might also assist.
The binding element of the Judgement of Keane J in the Denny case is that "each case must be considered in the light of its particular facts and of the general principles which the courts have developed". Therefore, the test regarding whether "a person is in business on their own account" is reduced from being the fundamental test to one of the many factors that have to be taken into consideration in light of the particular facts of the case. Perhaps the main point to take from the case is that the various tests in this area should be considered as useful, rather than fundamental or single composite tests. Furthermore, each case should be examined on its own facts, giving particular attention as to whether or not a written contract containing a statement of the purported nature of the contract exists, or where no clear written contracts exists, whether in fact one, or more contracts or an umbrella type of contract exists. The Tribunal must consider all the facts in the case before it and must not have a narrow focus.
The Tribunal found the Denny case, in most part, particularly useful in considering its decision. It is worth setting out the facts of this case: A demonstrator had been engaged by the Appellants to demonstrate its food products in various supermarkets. She was employed under a series of temporary contracts which were renewed every year. Her contract clearly specified that she was not an employee rather she was an independent contractor. Some of these statements were:-
"You are deemed to be an independent contractor",
"It shall be your duty to pay and discharge such taxes and charges as may be payable out of such fees to the Revenue Commissioners or otherwise",
"It is agreed that the provisions of the Unfair Dismissals Act1977 shall not apply etc",
"You will not be an employee of this company",
"You will be responsible for your own tax affairs"
However, her duties were to be carried out in a very specific way; she would be given a minimum period of notice before each job; if she could not do the job another person approved by the employer could do it for her; she had to wear a uniform provided; she was paid by the days she worked, payment being made on receipt of an invoice which was only valid if signed by the store manager. She submitted an invoice and payment was made each fortnight without deduction of tax or PRSI.The demonstrator was deemed to be an employee notwithstanding statements to the contrary in her contract.
The Judge in the Denny case felt that 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 contracting parties but were of minimal value in deciding the work status of the person engaged. This is a somewhat unhelpful part of the Denny judgement, in that there is a view that all things being equal then one must look at the intention of the parties. However, in Denny the intention of the parties was that the relationship between them was one of independent contractor. This is somewhat confusing.
In 'the Denny case'
the Supreme Court held that in order to decide whether a contract is one for service or of service each case should be considered on its own particular facts and in the light of the general principles which the courts have developed McAuliffe V Minister for Social Welfare 1995 ILRM 421 approved;
Whilst the degree of control exercised by a person may provide guidance in deciding whether a contract is one "for service" or "of service" it may not always be a satisfactory test to apply Cassidy V Minister for Social Welfare 1951 2 KB 343 and Queensland Stations Property Limited V Federal Commissioner of Taxation 1945 70 CLR 539 considered. The degree of control is not decisive. Market Investigations Limited V Minister for Social Security 1968 3 AER 732.
The inference that a person is engaged in business on their own account is more readily drawn when they provide their own premises or equipment, where they employ others to assist them in their business and where the profit is dependent on the efficiency with which they conduct their business.
Whilst a written agreement was drafted with a view of ensuring that the demonstrator was regarded in law as an independent contractor, this was only one of the factors to be taken into account. The facts or realities of the situation on the ground must also be considered.
The Tribunal then considered the facts of the case before it with commentary of previous case law and taking into account the facts and realities on the ground. In doing so the Tribunal found some factors more helpful than others. The Tribunal notes the observations of Edwards J in Dillon L.J in Nethermere (St Neots) that:
"the same question as an aid to appreciating the facts will not necessarily be crucial or fundamental in every case. It is for a court or Tribunal seized of the issue to identify those aids of greatest potential assistance to them in the circumstances of the particular case and to use those aids appropriately".
While 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. The terms "employed" and "self-employed" are not clearly defined in law, but some guidance has been provided by the courts. It is necessary to look at what the worker actually does, the way the worker does it and the terms and conditions under which the worker is engaged. This will be in the mind of the Tribunal when it considers all the facts surrounding the working relationship between the claimant and the Respondent. The Tribunal considered existing case law in this contentious area, cognisant of the fact that it would be difficult to find a set of circumstances in a previously decided case that exactly mirrors "the particular circumstances" of the case in issue. Recourse is therefore made to cobbling ratio decidendi from a number of relevant cases to fit the circumstances of the case before the Tribunal.
The Tribunal then considered the evidence adduced taking into consideration all the factors relating to the working relationship between the Claimant and the Respondent. These factors which are now set out in summary hereunder, some supportive of the contention that the claimant was engaged as an Independent Contractor and others supportive of the claimant having employee status.
In Business on her own Account and/or Integration
In the Barry High Court case Mr Justice Edwards considered that the appropriate test as to whether a person is engaged in business on his or her own account should consider, among other matters [see below], the following factors:
Whether the person provides the necessary premises, or equipment or some other form of investment.
In the case before the Tribunal the claimant did not provide premises, equipment or any investment. Furthermore, the claimant had no involvement with the ownership or rental of the building.
Whether the person employs others to assist in the business.
The claimant did not employ others to assist in the business, and
whether 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 claimant could not have earned extra money by working harder or conducting the business differently. The pay she received was the same, which was paid on submission by her of an invoice.
These tests are useful in assessing how integrated the claimant was in the working relationship between the parties and notes that she was integrated in the respondent’s business, working in the same office as other employees, with nothing obviously distinguishing her from these other employees except, that she was paid on submission of an invoice. She sat with the whole work team. She was provided with a bank computer and had access to the bank’s e-mail. She was invited to all team events and was included in all team meetings. She had access to sensitive information. The claimant explained that the senior management trusted her and the support staff worked parallel with her.
That it is not confined to these three tests is clear from Mr Justice Edwards reference to "among other matters". The "other matters" which the Tribunal considered were:
Relevant Contracts/Intention of the Parties:
The claimant commenced working for the Respondent in July 2006 through her IT Consulting company.
It appears to the Tribunal that there were three distinct phases of the relationship between the claimant, her company (Clyda IT Ltd) and the respondent, as detailed below:
a) During the period from 31st July 2006 to 30th November 2007, there were seven short term contracts between a company called Vantage Recruitment Services Limited and Clyda IT Services, (the claimant’s consulting company) and the claimant worked to these contracts. The seven contracts show clearly, that the intention of the parties to these contracts (Vantage Recruitment Agency and Clyda IT Services Ltd.) was that of a contract for services. Ulster Bank was not a party to these contracts. It follows that there could not have been a contract either of, or, for service between the claimant and Ulster Bank during this period.
b) During the period from 1st December 2007 to 31st December 2009, the Tribunal was provided with copies of two contracts between the respondent and the claimant’s company, which were contracts for service. These contracts were unsigned by either party. However, it is clear that, despite the unsigned nature of the contracts, both parties operated the contents of these contracts to the letter.
c) During the period from January 2010 until the date of termination on the 28th February 2014, there was no written contract in existence between the parties. The claimant, through her company (Clyda IT services), continued to present invoices for payment which the respondent honoured.
Mutuality of obligation
From the evidence before it the Tribunal is satisfied that the employer (respondent) was obliged to provide work for the employee (claimant) and the employee was obliged to perform that work.
Intention of the Parties:
The Tribunal is satisfied that the initial working relationship was one of Contract for Service but this changed over time, which will be dealt with below.
Control:
Whilst the degree of control exercised by a person may provide guidance in deciding whether a contract is one "for service" or "of service" it may not always be a satisfactory test to apply. This is clear from the cases referred to above and Cassidy V Minister for Social Welfare 1951 2 KB 343 et al. The Tribunal considered the question of "control" and found that the respondent exercised certain control over the claimant’s work. She was allocated the work which she then did.
Actions of the claimant
The Tribunal is satisfied that the claimant worked to a Contract for Service initially through her company up to 2010 or thereabouts. The change, which occurred in 2010, will be dealt with below.
Taxation
The claimant was paid on submission of an invoice and she looked after her own taxation, VAT and PRSI. While this may indicate independent contractor status it is not decisive and the Tribunal notes that in the Denny case the demonstrator paid her own tax and PRSI and submitted an invoice yet the Supreme Court held she was an employee. However, the demonstrator in the Denny case did not appear to have presented VAT invoices. If she did not then, perhaps, the Supreme Court’s decision can be distinguished from the claimant’s case in that the claimant’s company invariably did present VAT invoices.
The Tribunal notes that even Revenue do not accept the fact that because an individual has registered for self-assessment or VAT automatically makes that person self-employed. In the same way Revenue do not automatically accept that because a person is taxed under the PAYE system that the person is automatically an employee. This is clear from the 2010 document – Code of Practice for Determining Employment or Self-Employment Status of Individuals;
Pension Entitlements:
There was no contribution of pension by the respondent.
Sick Pay/Time off in lieu:
Evidence was given that on one occasion when the claimant missed work because of illness, the company acknowledged that she had worked excessive hours and offered to pay the three day’s pay. The claimant estimated that, during an exceptionally busy period, she worked the equivalent, in additional hours, of 35 days approx. She made representations to the respondent regarding these additional hours and was allowed to claim 17/18 days’ time in lieu in relation to excessive hours. An independent contractor is not allowed time in lieu by the person engaging him/her.
Substitution: the claimant could not use another person to substitute for her – she had to perform the work allocated to her. Neither was there any provision for the claimant to sub-contract her work.
Whether the profit she derived was dependent on how she carried on her work?
The Tribunal does not believe that if the claimant worked harder, or differently, that she could have earned more money. There was no bonus entitlement. She was paid a standard amount, which did not change.
In business on her own account:
No credible evidence was presented to the Tribunal that the claimant was in business on her own account. In O'Coindealbhain (Inspector of Taxes V Mooney) [1990] IR 422 the critical question was considered to be whether the person was performing the relevant services as a person in business in his/her own account.
Holidays:
She was not paid annual leave, but when projects were finished she took unpaid time off in lieu.
Support Staff: At times directly employed bank staff reported to the claimant in relation to project work. This is somewhat supportive of the claimant having employee status.
Conclusion:
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 number 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 of all individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. 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 is that of a person working in a self-employed capacity or a person working as an employee in somebody else's business. If the evidence is evenly balanced, the intention of the parties may then decide the issue. The intention of the parties originally was that the working relationship was one of Contract for Service. The Tribunal is satisfied that this changed over time. The Tribunal is further satisfied that in 2010 on her own evidence, the claimant tried to regularise her status and spoke to HW, CW and later on, RH. The matter was not dealt with properly or at all. The Tribunal notes that the claimant was told she would not be provided with permanent employment but this did not address the issue of her employment status. The Tribunal notes from Edwards J judgement in the Barry High Court case that “there is no universal test whereby it may be said that if a particular indication is met or not met that a person is employed or not” Charleton J in the Barry Supreme Court Case [Paragraph 9] case elaborated on this as follows: “it may need to be factored into any such analysis that it can be that a course of dealings over years may turn from what was initially the engagement of self-employed contractor, to do work on a particular basis into an employment relationship”. The Tribunal determines that, having regard to all the evidence, this is what happened in the case before it.
In summary there is no single test. Each case must be considered in the light of its own particular facts.
Standing back and looking at the working relationship as a whole, and mindful of the legal principles set out in the cases referred to above, the Tribunal determines that the working relationship between the Claimant and the Respondent drifted into a Contract of Service and that the claimant was working as an employee for the respondent.
The Tribunal therefore does have jurisdiction to hear the claim under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)