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Dramatic Last minute amendment to 2017 Bill criminalises misclassification of an “employee” as “self-employed worker”

A last-minute amendment to the Employment (Miscellaneous Provisions) Bill 2017 (“2017 Bill”) was made on 12th July 2018 in the Dáil as proposed by Minister O’Dea. This amendment, which is currently at Section 20 of the Bill, introduces a criminal offence on an employer and its directors, managers, secretary or other officer involved, who incorrectly designates an employee as self-employed. If found guilty of an offence the body corporate and manager or officer involved may be liable on summary conviction to a class A fine and/or imprisonment for a term not exceeding 12 months.

The Bill goes on to set out that the Workplace Relations Commission (“WRC”) may bring and prosecute this offence. There appears to be no necessity for the WRC to prove intention on the part of the employer. The only defence provided in the section is for the employer to be able to “prove that he or she exercised due diligence and took reasonable precautions …to ensure that this designation was correct.” It will remain to be seen how an employer will be able to do this when there is already so much case law from the High Court and Supreme Court in respect of determining the employment status of an individual and how it all depends on the facts of each case. It is also astounding how it is envisaged that the WRC is going to be in a position to decide whether or not to prosecute an employer.

The Bill does set out factors which may indicate whether a person is an employee or self-employed, all of which have come out of case law. The implementation of this amendment will lead to a serious amount of confusion if the WRC decides that an individual is self-employed and the Revenue or Social Welfare decide that the individual is an employee for tax purposes. Also, there is no consideration given in the Bill to the various differences in the definition of a “worker” or “employee” under the different pieces of legislation. Link to the amended bill – https://data.oireachtas.ie/ie/oireachtas/bill/2017/147/eng/ver_b/b147b17d.pdf
31st July 2018

Anne O’Connell
1-3 Burton Hall Road
Dublin 18

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