Who is an Employer?*

By August 8, 2019Employment Law

Who is an Employer?

 

This issue arose in case ADJ-15756 involving an employee of a youth service. The issue was under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001.

The AO in this case referred to the Supreme Court decision of the Minister for Education and Skills –v- Boyle 2018 IESC52 being a decision of the 1st November 2018 which overturns the Labour Court, High Court and Court of Appeal decision that Boyle was the employee of the Minister. The Supreme Court noted, as the AO pointed out, that the case has the potential to effect may different kinds of arrangement where the payment of salaries were undertaken by a third party. In that case Mr Justice Clarke stated that most third party funders would be likely to impose detailed conditions as to the financial terms on which persons whose salaries were paid could be employed and that third party funders were unlikely to give employers a blank cheque in this regard. The Court concluded that not all of the teachers terms and conditions were determined by the Minister in particular the Court was satisfied of the fact that the position did not carry any pension entitlements was a result of the school’s lack of resources rather than any ministerial policy. The Court stated that it was necessary to have particular regard to the previous decision in O’Keeffe –v- Hickey 2008 IESC72 where the Court held that the State was not liable for acts of child abuse by a person working in a school because the contract of the wrongdoer was with the Board of Management of the school rather than with the Minister. In that case the Court noted that the Minister had no entitlement to direct the type of work done by the applicant.

The AO in this case looked at the definition of the word “employer” in the Protection of Employees (Part-Time Work) Act 2001 in particular Section 1 and held that the Educational Training Board in this case entered into a grant agreement and that the respondent was responsible for managing such programmes and ensuring service targets were met. The relevant ETB was responsible for monitoring reporting, inspecting and payment of funding. The funding was provided by the Department of Education and Skills. The AO pointed out that the statutory definition of the terms “employer” and “employee” was already referred to before considering the applicable laws found by both the High Court and Supreme Court in a variety of decisions being Tobin –v- Cashell High Court Kearns J 21 March 2000, Crowley –v- Ireland 1980 IR120, O’Keeffe –v- Hickey 2008 IESC72 and Catholic University School –v- Dooley 2010 IEHC496.

The AO found that the respondent was responsible for managing each programme and ensuring that service targets were met and that the paying conditions of the employer were determined by the Minister out of public funds and that this was paid via the ETB. The AO pointed out that for clarity the purpose of ordinary day to day control the complaint had their contractual relationships with the respondent which was the youth service. The AO found in favour of the employee.

This case is useful restatement of the law relating to whom an employer is.

There has been a degree of uncertainty on this issue until the end of last year.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.

Richard Grogan

Author Richard Grogan

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