The issue of the status of a person being an employee or not is an often argued over issue in employment law cases.

The pipefitter or plumber in this scenario must have been working under a Contract of Service rather than a Contract for Service, if they wish to seek to activate employment rights under the Sectoral Order mentioned above.

There is guidance from the Revenues Code of Practice for Determining Employment which outlines criteria questions to then apply to the facts of a case, such as:

1. Is under the control of another person who directs as to how, when and where the work is to be carried out ?.
2. Supplies labour only ?.
3. Receives a fixed hourly/ weekly/monthly wage ?.
4. Cannot subcontract the work. If the work can be subcontracted and paid on by the person subcontracting the work, the employer/employee relationship may simply be transferred on ?.
5. Does not supply materials for the job?.
6. Does not provide equipment other than the small tools of the trade. The provision of tools or equipment might not have a significant bearing on coming to a conclusion that employment status may be appropriate having regard to all the circumstances of a particular case ?.
7. Is not exposed to personal financial risk in carrying out the work.
8. Does not assume any responsibility for investment and management in the business ?.
9. Does not have the opportunity to profit from sound management in the scheduling of engagements or in the performance of tasks arising from the engagements ?. 
10. Works set hours or a given number of hours per week or month?
11. Works for one person or for one business ?.
12. Receives expense payments to cover subsistence and/or travel expenses?
13. Is entitled to extra pay or time off for overtime. Additional factors to be considered ?.
14. An individual could have considerable freedom and independence in carrying out work and still remain an employee ?.
15. An employee with specialist knowledge may not be directed as to how the work is carried out ?.
16. An individual who is paid by commission, by share, or by piecework, or in some other atypical fashion may still be regarded as an employee?
17. Some employees work for more than one employer at the same time. Some employees do not work on the employer’s premises ?.
18. There are special PRSI rules for the employment of family members .?
19. Statements in contracts considered by the Supreme Court in the ‘Denny’ case, such as “You are deemed to be an independent contractor”, “It shall be your duty to pay and discharge such taxes and charges as may be payable out of such fees to the Revenue Commissioners or otherwise”, “It is agreed that the provisions of the Unfair Dismissals Act 1977 shall not apply etc”, “You will not be an employee of this company?.

A U.K. case namely Market Investigations Limited V Minister of Social Security also provides some guidance questions to ask and then apply to the facts to assess if the worker is an employee or not, which are:

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 worker be they an employee, a ‘’worker’’, a self-employed worker must prove, if they take a case, that they are working under a Contract of Service and not a Contract for Service by applying the above criteria and any other criteria that can be of assistance.

Getting the correct contract terms right from the start is very important then for pipe-fitters and plumbers, in order to have the legal protection of the Sectoral Employment Order 2018.

Cleary & Co. Solicitors, Litigation Law Firm 

Kieran Cleary and Roger Cleary Employment Law Solicitors can help with questions you may have regarding employment law matters and our numbers are (01) 546 1121 or  (052) 612 1999 or our email address is info@clearysolicitors.com

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be sought from a solicitor prior to relying on anything in this article.

Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.

If you have an employment law issue and wish to discuss it, Kieran Cleary and Roger Cleary are experienced Employment Law Solicitors who can help with questions you may have regarding such a matter.

Contact details are (01) 546 1121 or  (052) 612 1999 or our email address is info@clearysolicitors.com

Cleary & Co. have many years of experience specialising in employment law and have successful track record resolving disputes.

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