Bogus Self Employed / Genuine Self Employed Contractors*
This case arose in a case ADJ/00014654.
What is interesting in relation to this case is that a considerable amount of case law was actually quoted and we think it is useful that we set out the cases here being;
- Market Investigations Limited –v- Minister for Social Security 1969 2QB173;
- United States –v- Silke 1946 331US704;
- Yemens –v- Noakes 1886 QBD520;
- Cassidy –v-0 Minister for Health 1951 2KB343;
- Roche –v- P Kelly a& Co. 1969 IR100;
- Ready Mixed Concrete (South East) Limited –v- Minister for Pensions and National Insurance 1968 2QB497;
- Auto Clenz Limited –v- Belchler 2012 IRL820;
- Henry Denny & Sons (Ireland) Limited –v- Minister for Social Welfare 1998 1IR341;
- O’ Coindealbhain –v- Mooney 1990 1IR422.
The above cases dealt with the issue of “in business on your own account”.
In relation to the issue of mutuality of obligations the cases quoted were;
“Nethermere (St. Neots) Ltd –v- Gardiner 1984 ICR612.
Firthglow Limited trading as Protectacoat –v- Szilagyi 2009 IRLR365.
The case on behalf of the employee was that at all times he was working under a contract for service. The argument set out was that;
- The claimant presented each morning for work as required by the respondent
- He drove a vehicle supplied by the respondent for the purposes of delivering the respondents product
- He was assigned an area where the product would be delivered to various outlets and customers
- The claimant could not through sound management structure profits from his activities
- He was denied an opportunity by virtue of the contract to sell other products of the respondents competitors;
- He was paid a pre-determined wage based on the shifts he worked
- He was not free to hire his own staff to drive for him as it was a requirement that all drivers would be vetted by the respondent and would be required to agree directly with the respondent to be bound by the conditions of the distribution.
- He carried out the work personally
- The respondent insured the vehicle
- The respondent paid for painting, upkeep and all matters that would arise from time to time.
- The respondent raised all invoices on behalf of the claimant.
- The claimant did not own his own business and was not obliged to hold insurance in regard to the respondents goods
- The respondent decided as to when and where the claimant was to work
- The claimant was fully integrated into the business
The employer argued that this had been operating for 50 years and that no complaints had been made. The Adjudication Officer in this case went through matters in some detail and the relevant case law and determined that the claimant was an employee under a contract of service rather than a contract for services and accordingly upheld the claims.
The issue of bogus self-employed is clearly an issue which is arising more regularly. It is unusual that employers who may be at risk will not seek to resolve issues in advance. In this particular case of course the parties have not been named so the issue of publicity is not an issue. However, allowing these cases to proceed always raises the potential for them going on appeal to the Labour Court.
It is useful that the Adjudication Officer in this case has taken so much time to go through the arguments put forward by the employee and to review them as part of the decision.
*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.