Complainant

Respondent

Anonymised Parties

A Director of Training

A Health Provider

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00004356-001

11/05/2016

The complainant is a medical practitioner in private practice who also undertakes work for the respondent.

In making this claim for a statement of his statutory terms of employment the complainant seeks to establish initially that he qualifies under the Act to be given that statement as ‘an employee’, which status is disputed by the respondent.

This is one of a number of complaints by colleagues of the complainant who say they are in the same or a similar position, and which will be heard separate from this.

The complainant commenced working with the respondent on July 1st, 1998 as an assistant programme director in its training programme and became Director in 2015.

He was recruited to a temporary, part-time post, initially on the basis of a three-year, fixed term contract, to deliver one and a half training sessions per week, which increased to four in 2006. He received a statement of his terms of employment which included entitlement to annual leave and sick leave.

He is on the respondent ‘s payroll system and has made superannuation contributions.

He first sought an updated statement of his terms of employment on November 13th and December 15th, 2015 which was acknowledged in February 2016, but nothing further was heard.

The complainant says that the employment relationship meets the criteria that define a contract of service.

He must undertake the work set out for him and may not make himself unavailable for work without sanction or repercussion, there is a continuing obligation on the respondent to make work available to him and there is a mutuality of obligation in the employment relationship.

The complainant has no discretion in relation to how he conducts the respondent‘s business, including when and how to perform any particular assignment.

He may not delegate or outsource his functions and he is fully integrated into the respondent’s business for that part of his work, notably in respect of where he carries out his work, although the timing of when he delivers the work may vary depending on the availability of premises.

Also, tax and related matters are consistent with an employer/employee relationship and a document recently disclosed on foot of a Data Protection Access Request concluded that the complainant was entitled to a contract of indefinite duration.

He is required to make payments under the public service pension levy.

The complainant makes returns in respect of his self-employment arising from his private practice but his income from the respondent is fully taxed at source.

He receives holiday and sick pay and is a beneficiary of the respondent‘s ‘Bike to Work’ scheme.

He does not supply any equipment or materials; all of which are supplied by the respondent.

Following a complaint to the Pensions’ Ombudsman he received a decision on November 26th, 2015 adjudging him to be ‘a part-time employee’ of the respondent. However, that decision has not been acted on.

In respect of the respondent submission regarding the application of revised time limits the complainant relies on the decision in ADJ-00009820 in which it was held that the failure to provide a statement of the terms of employment is a subsisting contravention and where the statutory statement is not provided there is a continuing breach.

The respondent replies initially that the complaints fall outside the time limits for making a complaint.

The Workplace Relations Act 2015 amended the Terms of Employment (Information) Act, 1994 in a way that is significant for this complaint.

Under the original provisions of the Act a complainant could make a complaint at any time following the alleged breach and up to six months after the termination of their employment.

However, section 41 of the Act of 2015 provides at subsection (6) that an Adjudication Officer shall not entertain a complaint if it has been presented after the expiry of six months beginning on the date of contravention to which the complaint relates.

Therefore, the complaint has not been made within those statutory time limits.

The respondent also says that the document given to the complainant when he commenced in 1998 complies in almost all respects with the requirements of the Terms of Employment (Information) Act.

The only information missing from it relates to frequency of payment and pension schemes. This renders it unnecessary to make a decision on the complainant’s employment status if there has been de facto compliance with its requirements.

Without prejudice to that submission, the respondent says that the complainant does not have a contract of service and is engaged on a contract for services.

The respondent submits (through cross examination of the complainant) that the work carried out for the respondent is an extension of the work of his private practice.

The respondent made legal submissions on the various legal tests to be applied in determining employment status, noting that, as held in Minister for Agriculture and Food v Barry & others [2009] 1 IR 215 no single test is definitive, and the various tests are potential aids to identifying the nature of the working relationship; a view endorsed in the Supreme Court.

This approach is underscored by the emergence of the ‘multi-factorial’ test applied in O’Coindealbhain v Inspector of Taxes v Mooney [1990] 1 IR 442 and other cases.

The respondent says that the complainant is not an employee. The role undertaken with the respondent is no more than an extension of his role as a private practitioner and self-employed person.

Preliminary Issue; Time limits.

The decision in ADJ-00009820 sets out an interpretation of the legal position in relation specifically to the Terms of Employment (Information) Act 1994. It has not been appealed to the Labour Court and has been followed by this Adjudicator and others as a correct statement of the law.

The following appears in that Decision.

Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship.

Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress.

The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement. If the respondent’s submission was correct, the Oireachtas would have clearly stipulated that the interventions permitted by section 7(2) may only be made for a contravention arising on a single day after the end of the initial two-month period of employment.

If the respondent’s submission is correct, section 7(1) is superfluous.

This provision prevents an adjudication officer from hearing a complaint where the employer has complied with a previous direction or determination. This section would not be necessary if there could only be one contravention of section 3 arising on a single day. Instead, section 7(1) presents the contravention as a subsisting breach and prevents an employee from submitting a fresh complaint where the employer has complied with the outcome of a previous complaint.

While the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, is clear, in my view, that a breach of section 3 is a subsisting breach, this conclusion is fortified by the application of EU law.

First, the Terms of Employment (Information) Act, as amended, does not provide that the only date of contravention is the day after the end of the initial two-month period.

Applying a conforming interpretation to section 3 does not, therefore, require an impermissible contra legem interpretation of the section.

Article 2 of the Directive requires that a statement be provided by the employer to the employee and does not limit this requirement to any time period within the employment relationship. Reading section 3(1) of the Terms of Employment (Information) Act in conformity with Article 2 of the Directive leads to the conclusion that the obligation to provide the statement subsists throughout the employment relationship.

Article 8 of the Directive requires that employees have recourse where there is a breach and this requires section 41 of the Workplace Relations Act to be read as referring to the failure to provide a statement as a subsisting breach.

For these reasons, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, provides that a contravention of section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement.

The contravention of section 3 is a subsisting contravention.

If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment.

Accordingly, I adopt and apply this to the current complaint and I find that an alleged breach of this Act is a subsisting and continuing breach and the complaint is within jurisdiction from the point of view of time limits.

Turning to the substantive matter, and initially the submission by the respondent that, as the 1998 document given to the complainant largely complies with the requirements of the Act it is unnecessary to make a finding in relation to the employment status.

This argument might have some validity in a more general industrial relations context. Adjudication Officers may only make a decision on a complaint that is validly before them and within their jurisdiction (unless it comes within the more flexible parameters of the Industrial Relations Act).

If a person does not have legal status to bring a complaint in the first place, then by definition it is not possible to make a decision (that is to say a formal ‘Decision’ under the Workplace Relations Act) that there has been compliance with its provisions, which, after all derives only from their entitlement to make that complaint.

Accordingly, I reject that argument and find that it is necessary to make a decision on the nature of the contract.

If, having decided that issue, and activated a complainant’s right to make a complaint under the Act, the extent of any compliance with the requirements then becomes an issue again.

As the respondent noted there are a number of tests to determine whether a person is engaged on a contract of employment (‘of service’) or alternatively is what is generally referred to as ‘a contractor’ (engaged on ‘a contract for services’).

Some are decisive in either direction, some are more indicative. As noted in the respondent’s submission there is no single pass/fail type test which will determine a complainant’s status.

In the leading UK case of Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 a number of tests were formulated.

1)      Does the person performing the services supply his own equipment?

2)      Can he hire his own helpers?

3)      Does he carry any financial risks and to what extent?

4)      What opportunity does he have to make a profit?

5)      To what extent does he carry the responsibility for investment/management.

The Revenue Commissioners of Ireland have outlined similar tests in their Code of Practice for Determining Employment or Self Employment. These relate to whether the employee;

1)      Is under the control of another person who directs as to how, when and here the work is to be carried out,

2)      Supplies labour only,

3)      Received a fixed wage

4)      Cannot subcontract the work

5)      Does not supply materials for the job

6)      Does not provide equipment other than small tools of the trade

7)      Is not exposed to personal financial risk in carrying out the work

8)      Works set hours or a given number of hours

While determining the status of a contract of service has given rise to much legal difficulty, and especially more recently in the context of the so called ‘gig economy’ it will be obvious from the Revenue Commissioner indicators that the complainant comfortably meets each of the criteria required for a contract of service.

Every single one of the above indicators can be answered in the affirmative in respect of the complainant.

He was paid a fortnightly salary and nothing he could do would alter his earnings. The respondent supplied all the necessary materials.

The complainant in this case presents regularly at the place of work, in circumstances generally controlled by the respondent although he has some flexibility in this, in rather the way a university lecturer might.

Conversely, the indicators in the Market Investigations case which go to define a contract for services are all conspicuously inapplicable.

There was some discussion at the hearing about the role of a steering committee, and external curriculum oversight bodies; none of which alters the essential nature of the complainant’s contract of employment) and again, analogy with third level institutions is relevant here.

A person may have to exercise some initiative in the actual delivery of his duties; and it is easy to think of many examples of this (the captain of the ship principle’), but this will not necessarily undermine a complainant’s claim that he is employed on a contract of service if he is not ‘in business on his own account’.

The respondent sought to connect the complainant’s other, self-employed work activities to his role with the respondent.

Again, the relevance of this is to be determined by reference to the tests above and the actual nature of the complainant’s activity for the duration of his engagement with the respondent. The fact that the complainant may return income from the respondent to his private practise, for example does not affect that engagement; he is free to dispose of his taxed income however he wishes.

In Hall (Inspector of Taxes v Lorimer [1994] IRLR 171 the court endorsed an explanation approved by the lower court (whose judgement was on appeal to it);

‘In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity. This is not a mechanical exercise of running through items on a checklist to see whether they are present in, or absent from a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details.’

Applying this approach, I have no hesitation in concluding that the complainant met the criteria for the former; a contract of service and falls within the jurisdiction of the Terms of Employment) Information) Act 1994.

As for the somewhat fanciful submission that, although not obliged to do so the respondent did in fact, accidentally, (if partially) meet the requirements of the Act by means of the provision of an outline of the post’s duties produced for the purposes of recruitment to the post, it matters little, certainly in terms of any sanction. It was accepted by the respondent that even that statement was defective.

Accordingly, I uphold the complaint and find that the complainant works under a contract of service and is entitled to be given a statement of his terms of employment that complies with the requirements of the Terms of Employment (Information) Act 1994.

For the reasons set out above I uphold complaint CA-00004356-001.

I order the respondent to provide the complainant with a statement in compliance with Section 3 of the Terms of Employment (Information) Act 1994 and award the complainant €4,500.00 for the breach of his rights under the Act.

Terms of Employment, contract of service. Time limits.

Complainant

Respondent

Anonymised Parties

A Director of Training

A Health Provider

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00004356-001

11/05/2016

The complainant is a medical practitioner in private practice who also undertakes work for the respondent.

In making this claim for a statement of his statutory terms of employment the complainant seeks to establish initially that he qualifies under the Act to be given that statement as ‘an employee’, which status is disputed by the respondent.

This is one of a number of complaints by colleagues of the complainant who say they are in the same or a similar position, and which will be heard separate from this.

The complainant commenced working with the respondent on July 1st, 1998 as an assistant programme director in its training programme and became Director in 2015.

He was recruited to a temporary, part-time post, initially on the basis of a three-year, fixed term contract, to deliver one and a half training sessions per week, which increased to four in 2006. He received a statement of his terms of employment which included entitlement to annual leave and sick leave.

He is on the respondent ‘s payroll system and has made superannuation contributions.

He first sought an updated statement of his terms of employment on November 13th and December 15th, 2015 which was acknowledged in February 2016, but nothing further was heard.

The complainant says that the employment relationship meets the criteria that define a contract of service.

He must undertake the work set out for him and may not make himself unavailable for work without sanction or repercussion, there is a continuing obligation on the respondent to make work available to him and there is a mutuality of obligation in the employment relationship.

The complainant has no discretion in relation to how he conducts the respondent‘s business, including when and how to perform any particular assignment.

He may not delegate or outsource his functions and he is fully integrated into the respondent’s business for that part of his work, notably in respect of where he carries out his work, although the timing of when he delivers the work may vary depending on the availability of premises.

Also, tax and related matters are consistent with an employer/employee relationship and a document recently disclosed on foot of a Data Protection Access Request concluded that the complainant was entitled to a contract of indefinite duration.

He is required to make payments under the public service pension levy.

The complainant makes returns in respect of his self-employment arising from his private practice but his income from the respondent is fully taxed at source.

He receives holiday and sick pay and is a beneficiary of the respondent‘s ‘Bike to Work’ scheme.

He does not supply any equipment or materials; all of which are supplied by the respondent.

Following a complaint to the Pensions’ Ombudsman he received a decision on November 26th, 2015 adjudging him to be ‘a part-time employee’ of the respondent. However, that decision has not been acted on.

In respect of the respondent submission regarding the application of revised time limits the complainant relies on the decision in ADJ-00009820 in which it was held that the failure to provide a statement of the terms of employment is a subsisting contravention and where the statutory statement is not provided there is a continuing breach.

The respondent replies initially that the complaints fall outside the time limits for making a complaint.

The Workplace Relations Act 2015 amended the Terms of Employment (Information) Act, 1994 in a way that is significant for this complaint.

Under the original provisions of the Act a complainant could make a complaint at any time following the alleged breach and up to six months after the termination of their employment.

However, section 41 of the Act of 2015 provides at subsection (6) that an Adjudication Officer shall not entertain a complaint if it has been presented after the expiry of six months beginning on the date of contravention to which the complaint relates.

Therefore, the complaint has not been made within those statutory time limits.

The respondent also says that the document given to the complainant when he commenced in 1998 complies in almost all respects with the requirements of the Terms of Employment (Information) Act.

The only information missing from it relates to frequency of payment and pension schemes. This renders it unnecessary to make a decision on the complainant’s employment status if there has been de facto compliance with its requirements.

Without prejudice to that submission, the respondent says that the complainant does not have a contract of service and is engaged on a contract for services.

The respondent submits (through cross examination of the complainant) that the work carried out for the respondent is an extension of the work of his private practice.

The respondent made legal submissions on the various legal tests to be applied in determining employment status, noting that, as held in Minister for Agriculture and Food v Barry & others [2009] 1 IR 215 no single test is definitive, and the various tests are potential aids to identifying the nature of the working relationship; a view endorsed in the Supreme Court.

This approach is underscored by the emergence of the ‘multi-factorial’ test applied in O’Coindealbhain v Inspector of Taxes v Mooney [1990] 1 IR 442 and other cases.

The respondent says that the complainant is not an employee. The role undertaken with the respondent is no more than an extension of his role as a private practitioner and self-employed person.

Preliminary Issue; Time limits.

The decision in ADJ-00009820 sets out an interpretation of the legal position in relation specifically to the Terms of Employment (Information) Act 1994. It has not been appealed to the Labour Court and has been followed by this Adjudicator and others as a correct statement of the law.

The following appears in that Decision.

Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship.

Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress.

The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement. If the respondent’s submission was correct, the Oireachtas would have clearly stipulated that the interventions permitted by section 7(2) may only be made for a contravention arising on a single day after the end of the initial two-month period of employment.

If the respondent’s submission is correct, section 7(1) is superfluous.

This provision prevents an adjudication officer from hearing a complaint where the employer has complied with a previous direction or determination. This section would not be necessary if there could only be one contravention of section 3 arising on a single day. Instead, section 7(1) presents the contravention as a subsisting breach and prevents an employee from submitting a fresh complaint where the employer has complied with the outcome of a previous complaint.

While the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, is clear, in my view, that a breach of section 3 is a subsisting breach, this conclusion is fortified by the application of EU law.

First, the Terms of Employment (Information) Act, as amended, does not provide that the only date of contravention is the day after the end of the initial two-month period.

Applying a conforming interpretation to section 3 does not, therefore, require an impermissible contra legem interpretation of the section.

Article 2 of the Directive requires that a statement be provided by the employer to the employee and does not limit this requirement to any time period within the employment relationship. Reading section 3(1) of the Terms of Employment (Information) Act in conformity with Article 2 of the Directive leads to the conclusion that the obligation to provide the statement subsists throughout the employment relationship.

Article 8 of the Directive requires that employees have recourse where there is a breach and this requires section 41 of the Workplace Relations Act to be read as referring to the failure to provide a statement as a subsisting breach.

For these reasons, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, provides that a contravention of section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement.

The contravention of section 3 is a subsisting contravention.

If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment.

Accordingly, I adopt and apply this to the current complaint and I find that an alleged breach of this Act is a subsisting and continuing breach and the complaint is within jurisdiction from the point of view of time limits.

Turning to the substantive matter, and initially the submission by the respondent that, as the 1998 document given to the complainant largely complies with the requirements of the Act it is unnecessary to make a finding in relation to the employment status.

This argument might have some validity in a more general industrial relations context. Adjudication Officers may only make a decision on a complaint that is validly before them and within their jurisdiction (unless it comes within the more flexible parameters of the Industrial Relations Act).

If a person does not have legal status to bring a complaint in the first place, then by definition it is not possible to make a decision (that is to say a formal ‘Decision’ under the Workplace Relations Act) that there has been compliance with its provisions, which, after all derives only from their entitlement to make that complaint.

Accordingly, I reject that argument and find that it is necessary to make a decision on the nature of the contract.

If, having decided that issue, and activated a complainant’s right to make a complaint under the Act, the extent of any compliance with the requirements then becomes an issue again.

As the respondent noted there are a number of tests to determine whether a person is engaged on a contract of employment (‘of service’) or alternatively is what is generally referred to as ‘a contractor’ (engaged on ‘a contract for services’).

Some are decisive in either direction, some are more indicative. As noted in the respondent’s submission there is no single pass/fail type test which will determine a complainant’s status.

In the leading UK case of Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 a number of tests were formulated.

1)      Does the person performing the services supply his own equipment?

2)      Can he hire his own helpers?

3)      Does he carry any financial risks and to what extent?

4)      What opportunity does he have to make a profit?

5)      To what extent does he carry the responsibility for investment/management.

The Revenue Commissioners of Ireland have outlined similar tests in their Code of Practice for Determining Employment or Self Employment. These relate to whether the employee;

1)      Is under the control of another person who directs as to how, when and here the work is to be carried out,

2)      Supplies labour only,

3)      Received a fixed wage

4)      Cannot subcontract the work

5)      Does not supply materials for the job

6)      Does not provide equipment other than small tools of the trade

7)      Is not exposed to personal financial risk in carrying out the work

8)      Works set hours or a given number of hours

While determining the status of a contract of service has given rise to much legal difficulty, and especially more recently in the context of the so called ‘gig economy’ it will be obvious from the Revenue Commissioner indicators that the complainant comfortably meets each of the criteria required for a contract of service.

Every single one of the above indicators can be answered in the affirmative in respect of the complainant.

He was paid a fortnightly salary and nothing he could do would alter his earnings. The respondent supplied all the necessary materials.

The complainant in this case presents regularly at the place of work, in circumstances generally controlled by the respondent although he has some flexibility in this, in rather the way a university lecturer might.

Conversely, the indicators in the Market Investigations case which go to define a contract for services are all conspicuously inapplicable.

There was some discussion at the hearing about the role of a steering committee, and external curriculum oversight bodies; none of which alters the essential nature of the complainant’s contract of employment) and again, analogy with third level institutions is relevant here.

A person may have to exercise some initiative in the actual delivery of his duties; and it is easy to think of many examples of this (the captain of the ship principle’), but this will not necessarily undermine a complainant’s claim that he is employed on a contract of service if he is not ‘in business on his own account’.

The respondent sought to connect the complainant’s other, self-employed work activities to his role with the respondent.

Again, the relevance of this is to be determined by reference to the tests above and the actual nature of the complainant’s activity for the duration of his engagement with the respondent. The fact that the complainant may return income from the respondent to his private practise, for example does not affect that engagement; he is free to dispose of his taxed income however he wishes.

In Hall (Inspector of Taxes v Lorimer [1994] IRLR 171 the court endorsed an explanation approved by the lower court (whose judgement was on appeal to it);

‘In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity. This is not a mechanical exercise of running through items on a checklist to see whether they are present in, or absent from a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details.’

Applying this approach, I have no hesitation in concluding that the complainant met the criteria for the former; a contract of service and falls within the jurisdiction of the Terms of Employment) Information) Act 1994.

As for the somewhat fanciful submission that, although not obliged to do so the respondent did in fact, accidentally, (if partially) meet the requirements of the Act by means of the provision of an outline of the post’s duties produced for the purposes of recruitment to the post, it matters little, certainly in terms of any sanction. It was accepted by the respondent that even that statement was defective.

Accordingly, I uphold the complaint and find that the complainant works under a contract of service and is entitled to be given a statement of his terms of employment that complies with the requirements of the Terms of Employment (Information) Act 1994.

For the reasons set out above I uphold complaint CA-00004356-001.

I order the respondent to provide the complainant with a statement in compliance with Section 3 of the Terms of Employment (Information) Act 1994 and award the complainant €4,500.00 for the breach of his rights under the Act.

Terms of Employment, contract of service. Time limits.