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Labour Court Holds that an Employee/Employer Contract is Not Required for the Employment Equality Acts

On 4th April 2019, the Labour Court remitted a case back to the WRC after it decided that the Claimant was permitted to take a claim under the Employment Equality Acts as her contract was within the broad definition of a contract of employment regardless of it not being a contract of service.

Facts

The WRC did not decide on the substance of the claim as the adjudicator ruled that the WRC did not have jurisdiction as the Claimant’s contract was a contract for service. The Labour Court then decided to rule only on the preliminary matter and if the Claimant was successful, the matter would be remitted back to the WRC to hear the Substantive Claim.

The Claimant commenced employment with the Respondent on 2nd August 2004 on a fixed rate of pay. In May 2005, she began working in a different practice and the Respondent decided to then pay the Claimant on a commission based structure.

The Claimant submitted that the Respondent set her hours of work and dictated the nature of the work she undertook. The Claimant used the Respondents equipment and drugs and followed the partner’s advice on mixing drugs.

The Respondent submitted that they regularly asked the Claimant to become an employee of the practice but she refused as their arrangement suited her, giving her the opportunity to pick and choose her work. The Claimant also used her own accountant regarding her income tax and VAT affairs and paid her own professional indemnity insurance. 

Decision     

The Labour Court noted that the nature of the relationship between the parties was not an employer/employee relationship. However, the Labour Court held that the definition of an “employee” under the Employment Equality Acts is much broader than other employment legislation and includes self-employed workers. It held that employment under a contract of service is not a condition precedent to bring a claim under the Employment Equality Acts. The Acts apply to a person employed under a “contract of employment” rather than a “contract of service”. The Labour Court stated that the definition of a ‘contract of employment’

brings within its ambit a person employed on “any other contract” which can include a person employed on a contract for services provided that the person provides services personally.”

The Labour Court also accepted that the broad definition of  an employee under the Acts was echoed in the definition of a “worker” in  the CJEU case of  Danosa v LKB Lizings SIA[2011] 2 CMLR 45 which related to the Pregnancy Directive and therefore applicable to the Acts. In that case the CJEU held  that,

the essential feature of an employment relationship is that for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration.”

The Labour Court held that the Adjudicator had erred in deciding that he lacked jurisdiction to hear the Claimant’s claim that she had been discriminated against on gender and family status grounds. As the Claimant’s substantive claim had not been investigated in the first instance the Labour Court referred the matter back to the WRC.

30th April 2019

https://www.workplacerelations.ie/en/Cases/2019/April/EDA198.html

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2

www.aocsolicitors.ie

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