Preliminary Point – Employment Status In relation to the issue of determining the complainant’s employment status I note the case of Henry Denny and Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34 which states as follows: “an Adjudicating body must not confine itself to the contract documents when determining this issue or to the labels that the parties ascribe to themselves and that each case must be looked at in light of its own particular facts and circumstances having regard to what the real arrangement was on a day to day basis as well as having regard to the general principles developed by the Courts.” In line with the provisions of the Denny case to establish the employment status of the complainant I have considered the day to day reality of the employment relationship between the parties and have considered the matter by reference to the following tests: 1. Mutuality of Obligation Test This test considers if a mutual obligation exists between the parties; the obligation on the respondent to provide work for the complainant and on the complainant to carry out the work for the respondent. In Minister for Agriculture v Barry [2009] 1 IR 215 the mutuality of obligation test is considered as follows: “the mutuality of obligation test provides an important filter [...] 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 relationship and it is necessary to examine the relationship further”. In the instant case, the respondent confirmed in evidence that in circumstances where there were no gigs or where gigs were cancelled, nobody in the band worked or received payment. While everyone involved would benefit from increased bookings, I do not find that the respondent was obliged to secure work for the complainant or that the complainant was obliged to carry it out as in a normal employee/employer relationship. In all of the circumstances of the day to day operations of the band, I do not find that a Mutuality of Obligation existed between the parties. 2. The Enterprise Test This test is to establish if the complainant was in business on his own account or if he was doing the work as an employee for the Respondent. The principals of this test are set down in the English decision of Market Investigations v Minister of Social Security [1969] 2 Q.B 173 where Cooke J held as follows: “The fundamental test to be applied is this: ‘Is the person who has engaged himself to perform these services performing them as a person in business on his own account?’ If the answer to that question is ’yes’ then the contract is a contract for services. If the answer is ’no’ then the contract is a contract of service’’. This test was endorsed by the High Court in O ’Coindealbhain (Inspector of Taxes) v Mooney [1990] IR 422and by the Supreme Court in Denny. It has been since applied by the High Court and the Supreme Court in many cases to establish whether a person was an employee or an independent contractor. The main questions to answer are: a) Did the Complainant have the opportunity to supply services to others during his contract of engagement with the Respondent? b) Was the Complainant permitted to employ assistants or subcontract his work? c) Did the Complainant have the opportunity to maximise his profit from sound management in the performance of his tasks? d) Did the Complainant provide equipment or some form of investment? In the instant case the respondent stated that the complainant was also employed on a full-time basis elsewhere, so he may well have been supplying similar services to others during his engagement with the respondent. It was also clarified that in circumstances where the complainant failed to attend or indicated that he would not be in attendance, there were others hired to take his place. In the case of Brosnan v Courier Post Limited Trading as Fast Way Couriers, (UD259/2015) the EAT held that the claimant who, inter alia, could delegate his work to be done by others was engaged on the basis of a contract for services and not as an employee. It is unclear if the complainant could maximise his profit relating to the performance of his tasks, but it is clear from the contents of the agreement of November 2016 that the complainant did invest in the business by virtue of his payments toward the van and the payment towards the cost of a helper at gigs. On this issue, I find on balance that it was more likely that the complainant was in business on his own account rather than being an employee of the respondent. 3. Integration Test I fully accept that the complainant, as the band’s roadie, was an integral part of its operation. Apart from his promotional work which was carried out with a view to ensuring higher levels of earnings and greater levels of success for all involved, the complainants work prior to a gig had commenced and afterwards would be vitally important to the smooth operation of the band on a daily basis. Given the realities of being part of a band, it is difficult to confirm other areas of integration as would be possible in regular employments. 4. Control Test This test relates to the degree of control that an employer has over how the work is carried out. As in the “Denny” case it is “a factor to be taken into account” but is not determinative of the issue. In reality the degree to which the Respondent could exercise control over the complainant was limited. From the evidence adduced at the adjudication hearing, the complainant was well aware of his role in relation to promoting the band and in relation to his attendance at gigs and was completely competent in his role. I did not form the view at the adjudication hearing that there was any element of control or management of the complainant necessary on a day to day basis. The Intention of the parties In reaching my conclusion in relation to the employment status of the complainant and in addition to the tests mentioned above, it is necessary to consider what the intentions of the parties were at the material time. The EAT in McCotter v Quinn Insurance Limited (In Administration) UD242/2011 stated: “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.” In line with the principles in Denny, I have not confined myself to the contractual documents or how the parties describe themselves. I have taken these points into account as well as considering the practical elements of the relationship between the parties on a day to day basis. The complainant’s asserts that he became an employee of the respondent in January 2017 by virtue of a written agreement in relation to the future ownership of the band. I find that while this document guarantees the complainant a “job for life” it does not refer to him becoming an employee of the respondent nor does it include the normal requirements of a contract of employment. The document also lists a number of operating expenses that the complainant agrees to pay. This would be an unusual undertaking for an employee to accept. In addition, I do not find it plausible that the complainant assumed he was an employee and that the issue only arose some 16 months later in April 2018. It is unusual that anyone who considers themselves to be an employee would not query their entitlement to payslips or annual leave and public holiday entitlements etc. In all of the circumstances of this complaint, I conclude on the balance of probabilities that the intention of the parties from January 2017 onwards was that the respondent would be the sole owner of the band and that the complainant would continue carrying out his role as he had always done as a person working in a self-employed capacity. | 
