Business and Company Law Assignment

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It should be noted that none of the above tests can be totally conclusive, they are merely a means of determining whether it is more likely if a contract falls into one category or the other. These tests are not applied automatically, and each case must be considered on its own merits

Now that we have looked at how the law in Ireland determines disputes on whether a person is an employee or an independent contractor, we must apply the law to John’s situation. If we start by looking at the criteria mentioned above, John’s employer has a certain degree of control him in that he has to provide an article of 250 words weekly. He receives a fixed wage monthly, and he is supplied with the equipment needed to do the job. He only supplies his labour in his role. He is not exposed to any financial or personal risk. . There are other factors that also need to be taken into account.

- An individual can be an employee and still have considerable freedom and independence in carrying out the work

- An independent with a specialist knowledge may not be directed as to how to carry out his/her duties

- An individual can still be an employee even if they don’t work from the employers premises

- Some employees work for more than one employer at the same time (Code of Practice for Determining Employment or Self-Employment Status of Individuals, 2010)

I feel that these three factors are particularly significant in John’s situation. He has a certain degree of freedom when it comes to doing his job, as a journalist he would have his own ideas on how he wants his reports to come across, and it indicates that even though he doesn’t have an office it doesn’t mean that he is therefore working under a contract for service. He is permitted to submit articles to other newspapers as long as he seeks permission from his editor to do so. So the editor has the final say on if he can do so or not. Sometimes the article he produces for county News is published in other newspapers and John receives payment for these from the other newspapers, however this isn’t an indicator that he is self-employed. The Employment Appeals Tribunal held in Conroy v Travenol (1981) and Mulchrone v Feeney (1982) that employees have the right to work for other employers in their spare time as long as it does not infringe on their duties to their employer.

As part of John’s job at County News he has to attend monthly meetings with other journalists from the newspaper to discuss forthcoming events and devise policy positions. This indicates that he is very much integrated into the business. In 2013, the LRC Right Commissioner Service had to decide if seven journalists who were made redundant from the former paper ‘Sunday Tribune’ were employees and entitled to a redundancy payment or not. The commissioner decided that they were employees of the Sunday Tribune and were entitled to redundancy payments. The chairman of the National Union of Journalists is quoted as saying “There are a number of reasons why employers do this but at the end of the day many journalists may believe they have no employment rights, when in fact they have just as much protection under the law as any other employee”. (Journal, 2013)

I am very much of the opinion that the fundamental test is a very appropriate in John’s situation, and that there are a lot of similarities between his situation and Henry Denny and Sons v Minister for Social Welfare (1997). In this case the plaintiff hired in store product demonstrators on yearly contracts, and would contact them when they were needed. They were paid daily and given travel expenses but were not entitled to join the pension scheme or trade unions. The demonstrator in question was described as an independent in her contract and she carried out her own tax affairs. She was provided with the equipment and materials to carry out the job, and she required permission before she sub-contracted out any of the work. The demonstrations were not carried out under the supervision of Henry Denny and Sons but she was provided with written instructions as to how to carry out the work. The Supreme Court held that the demonstrator was an employee. Keane J noted that whether the individual was in business on his or her own account was fundamental, as well as the degree of control. He concluded that while each case must be determined in light of its own facts, in general a person will be defined as providing his/her services under a contract of service where he/she is performing those services for another person. The fact that there was no continuous supervision of the demonstrator, that she was provided with the equipment and clothing to perform the job, and made no contribution, financial or otherwise, to the business were all indicators that she was an employee (LawinIreland, 2015). Similar to the demonstrator in question, John must look after his own tax affairs, and he must seek permission from the editor of County News if he wants to publish an article for another newspaper. Another court decision which supports John’s case is that in Market Investigations v Minister for Social Security (1969). In this case there was a dispute between a lady who did market questionnaires and the company who she did them for. It was over whether insurance contributions should be made on her behalf. The judge held that the lady was an employee as she could not be said to be in business on her own account.

Having looked at all aspects of Johns situation, and taken the law and precedent in previous cases into account, I believe that John has a very good case to claim that he is an employee of County News, and that he should be entitled to a pay increase just like all the other employees of the newspaper. The fundamental test which is used by the courts in determining employment disputes point towards John working under a contract of service, and I would advise him to pursue legal action as previous rulings indicate the courts will come down on his side.

References

Byrne, G. (2011). Employment Law. In G. Byrne, Employment Law 3rd Edition (p. 5). Oxford University Press.

Code of Practice for Determining Employment or Self-Employment Status of Individuals. (2010, June). Retrieved January 10, 2016, from www.revenue.ie: http://www.revenue.ie/en/practitioner/codes-practice.html

Journal, T. (2013, March 8). Retrieved January 9, 2016, from www.businessetc.thejournal.ie: http://businessetc.thejournal.ie/sunday-tribune-redundancy-pay-824233-Mar2013/

LawinIreland. (2015). Retrieved January 8, 2016, from Law in Ireland: https://lawinireland.wordpress.com/labour-law-intro/