Misclassification of workers engaged by a company as "independent contracts" rather than "employees" can be a very costly mistake for businesses. In the event of an audit by the Revenue Commissioners, if it is considered that the true nature of the relationship between the individuals engaged and the business is an employment relationship, then the company engaging the individuals will be held liable to account as employer for PAYE, PRSI (including employer's PRSI (currently, 8.8% or 11.05% depending on annual earnings levels)) and USC, as applicable. In addition, Irish employment legislation will automatically imply a host of employment rights and employer obligations into the relationship. Some of these obligations, for instance payment for annual leave accrued, public holidays and statutory redundancy payments, carry a further potential liability.

The Gig Economy

Increased digitalisation of working practices and increased expectation on the part of workers for flexible arrangements have resulted in a dramatic growth in the "gig economy". The "gig economy" refers to non-traditional forms of engaging individuals to carry out work for a business incorporating a wide variety of working practices. Examples of gig employees in the workforce include freelancers, independent contractors, project-based workers and temporary or part-time hires. Determining employment status is an age old concept in employment law with a myriad of case law and revenue guidance distinguishing a "contract of service" (employee) from a "contract for services" (independent contractor). Even so, this area remains an ongoing source of misunderstanding and dispute between businesses and the individuals engaged. Case law in this area has consistently held that the determination of an individual's employment status is entirely fact specific and that the courts and Revenue Commissioners will look beyond the wording used in any contract for services to ascertain the true nature of the relationship. Adding to the potential confusion is the reality that emerging new work practices do not always lend themselves to a straightforward assessment of whether the individual engaged is an employee or an independent contractor.

There have been a number of recent high profile decisions which have addressed the employment status of individuals carrying out work in the "gig economy". In Uber BV v Aslam [2018], the UK Court of Appeal held that Uber drivers are "workers" and therefore entitled to certain employment rights including the right to be paid minimum wage and to receive pay for annual leave. In 2018, Deliveroo delivery riders were held to be independent contractors by the UK High Court in Independent Workers Union of Great Britain v Central Arbitration Committee and Roofoods Limited t/a Deliveroo [2018]. However, in 2019 Deliveroo delivery riders were found to be employees in both Spain and the Netherlands.

The general trend therefore appears to be an acceptance that the true status of many gig economy workers is not self-employment.

Karshan (Midlands) Limited trading as Dominos Pizza v Revenue Commissioners [2019]

This issue of gig economy workers' employment status came before the Irish High Court for the first time recently in Karshan (Midlands) Limited trading as Dominos Pizza v Revenue Commissioners [2019].

The High Court decision was on foot of an appeal by Dominos of the Tax Appeal Commission's determination that the delivery drivers were employees and therefore Dominos was responsible for paying tax. Dominos appealed on four grounds:

  1. Mutuality of obligation
    Dominos appealed on the ground that there was no mutuality of obligation inherent in its agreement with the drivers. Mutuality of obligation is an essential ingredient of an employment relationship and signifies an employer's obligation to provide work for its employee and the corresponding obligation of the employee to carry out that work. Dominos argued that there was no mutuality of obligation as the contract recognised the freedom of a driver to choose when he/she worked. In practice, the drivers notified Dominos of their availability and a roster was subsequently drawn up with shifts allocated to the drivers. The High Court held that there was one overarching "umbrella" contract supplemented by individual contracts in respect of each assignment or roster of work. Mutuality of obligation was found to be present in the supplementary individual contracts that governed each assignment of work. The High Court further held that mutuality of obligation does not need to be continuous in order for an individual to be an employee.
  2. Substitution
    Personal service is a hallmark of the employment relationship. Dominos therefore appealed on the grounds that the arrangement in place between it and its drivers allowed for the drivers to cancel a shift on short notice and nominate a substitute. The High Court held that the arrangement did not allow for true substitution as it imposed obligations on the drivers to notify Dominos of unavailability, nominate a substitute from a pre-approved panel of drivers and work the rest of the shifts that the worker had agreed to in a series. In addition to this, the substitute would be paid by Dominos and an invoice would be prepared by Dominos which were held to indicate an employment relationship.
  3. Integration
    Dominos submitted that the drivers were not employees as they were not integral to its business but were rather merely accessories. The High Court rejected this argument, noting that the drivers were required to wear uniforms and place Dominos logos on their cars, take telephone orders from Dominos rather than directly from customers and reassure customers that they were dealing with Dominos personnel.
  4. Terms of the contract
    The High Court rejected Dominos' contention that the express terms of the contractual documentation between the parties should have been given more weight and held that how the arrangement is worked in practice is of greater importance. This has consistently been the position in Irish case law on employment status. Employers will not be able to defend a position that there is a contract in place which expressly provides that an individual is an independent contractor if the reality of the situation is that the individual is treated as an employee.

It is not yet clear whether the High Court's decision will be appealed by Dominos, however, the High Court did grant leave to appeal should Dominos wish to do so.

Code of Practice for Determining Employment or Self-Employment Status of Individuals

The Revenue Commissioners have published an online Code of Practice for Determining Employment or Self-Employment Status of Individuals which lists a number of criteria and factors which tend to indicate the presence or absence of an employment relationship. However, when considering the Code of Practice, companies should be mindful that it was held in the Dominos decision that there is no comprehensive statutory or common law definition of a contract of service or a contract for services and that no "box-ticking" exercise is sufficient for determination. Rather, determination requires a careful and flexible understanding of relationships.

Recent Misclassification Results in €215,718 Liability

A similar recent determination of the Tax Appeals Commission, HotFoods v Revenue Commissioners [2018] also addressed the employment status of delivery drivers in Ireland. In this case, the Tax Appeals Commission held that the delivery drivers engaged by the company to deliver food to customers were employees as they were integrated into the business. This resulted in a significant financial liability being imposed on the company. The total PAYE and PRSI owed to the Revenue Commissioners arising from the misclassification of the delivery drivers as self-employed amounted to €215,718.

Key Takeaway for Businesses

  • The Dominos case is authority that even if the main arrangement between the parties is not one of employment, the manner in which the work is carried out can give rise to a "hybrid contract" in which there is an umbrella contract supplemented by individual contracts applicable to each assignment of work. If mutuality of obligation can be found in either contract, an employment relationship will arise.
  • As the written terms of a contract will not be a defence where the individual is in reality treated as an employee, a business should assess the arrangements it has in place and how they operate in practice to identify whether there is a risk of individuals it has engaged as independent contractors being determined to be employees.
  • If individuals are found to be employees rather than independent contractors, this can result in a massive unexpected cost for businesses, both in terms of unpaid tax to the Revenue Commissioner, the cost of employees seeking payment for employment rights wrongly denied to them, including payment for annual leave, public holidays, redundancy and other payments, and the cost of complying with employment legislation going forward.
  • New models of working cannot escape classification as an employment relationship. The Dominos decision recognised that determination of employment status must "adapt to modern means of engaging."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.