CAP1 LAW ROI - SESSION 3

EMPLOYMENT LAW

SOLUTIONS

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Questions

1. Summer 2008: 4A, 4B

2. Autumn 2008: 4B
3. Summer 2009: 4A, 4B
4. Autumn 2009: 3A
5. Summer 2010: 1A, 3B
6. Autumn 2010: 4A, 4B, 4C
7. Autumn 2011: 3D
8. Summer 2012: 2A, 2B, 2C
9. Autumn 2012: 3A
10. Summer 2013: 3C
11. Autumn 2013: 1B
12. Summer 2014: 3A
13. Autumn 2014: 3B
14. Summer 2016: 1A, 1B

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 Summer 2008

Question 4

A contract of employment means a “contract of service” and should be distinguished from

a “contract for services”. A person employed under a contract for services is not classified
as an employee, but is better described as an independent contractor. Normally, an
employee under a contract of service is employed on a continuous basis and to do a
series of recurring tasks, is paid on a regular basis and is subject to an employer’s
instruction as to how a job is to be done. On the other hand, an independent contractor is
employed to do a fixed task for a fixed sum and while he is told what to do, he is not told
how to do it.

The Irish Courts have developed a series of tests to help determine is someone an
employee or an independent contractor.

Control test: Traditionally, the main distinction between employees and independent
contractors centred on the issue of control. Here it is assumed that the employer exerts
direct control over all aspects of the employees work. Here the employer is presumed to
have the power to decide the work to be done, the method of completion, the means in
completing the task, the equipment needed to complete the task, as well as where and
when the work has to be completed. This level of control is not exerted over an
independent contractor.

However this test has got problems especially as far as skilled workers are concerned.
These skilled workers often work autonomously in the performance of their duties.
Conversely this test also works poorly in relation to workers employed in organisations
that exercise extensive control, but where the workers are traditionally independent
contractors.

The second test is the Integration test. The issue considered here is whether the worker
is employed as part of the business, and the work done by the worker is an integral part
of the business, as opposed to being only an accessory of the business. Essentially the
test asks whether the worker is a vital part of the operation of the workplace. The
integration test however can be inaccurate especially for small businesses where there
may be little scope for employee integration.

The third test is the Enterprise Test. This test seeks to ascertain whether the person,
who has engaged himself to perform these services, performs them as a person in
business on his own account. If the person is in business on his own account then he is
viewed as an independent contractor and not an employee

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 The fourth test is the Reality Test. In recent years the courts have taken a more holistic
approach in determining whether a worker is employed under a contract of service or a
contract for services. In essence the Courts will review all aspects of the relationship
between the worker and the employer in order to determine their status. Although there is
no exhaustive list of factors for the Courts to consider, some relevant considerations
include: 1) the intention of the parties, 2) the method of payment 3) whether tax and
PRSI are deducted at source 4) the right to select or dismiss 5) the right to delegate
performance of duties to another person 6) whether the person provides his own
equipment or not, or has his own helpers or not 7) the degree of skill which the person
possesses and the level of financial risk undertaken by him 8) whether the person is
viewed as an employee by other employees and 9) whether the worker has an
opportunity to profit from effective management in the performance of the task.

Looking at the various tests, it would seem that if you used the control test, Peter may be
an employee as he obeys instructions and complies with company policies and has also
signed the required confidentially contract and stated that he will not work for a
competitor. If you use the integration test, Peter is an employee also as he has full use of
the office facilities, he attends social events and he also attends training courses. If you
use the enterprise test he is also an employee as he has no financial risk, no profit
sharing is used. Finally using the holistic reality test he is also an employee if you look at
the nine factors I listed above.

Therefore I believe the Court should find that he is entitled to redundancy based on these
factors.

The penalties for breach of the legislation are criminal in nature and consist of the
imposition of a fine on summary conviction up to €3,000 and a term of imprisonment not
exceeding six months, and for more serious matters, the imposition of a fine of up to
€3,000.000, imprisonment of up to two years or both on indictment. In addition any person
convicted may be ordered to pay the Health and Safety Authority’s costs and expenses.

Section 80 also allows for the imposition of liability where the actions of directors and
managers are found to have contributed to the offence committed under the health and
safety legislation. Company Directors and managers carry a significant social
responsibility to protect safety and health, and where they are found to be personally
liable for breaches they could face either two years imprisonment or a maximum fine of
€3 million, or both.

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 Autumn 2008

Question 4B

Express terms are those terms which are agreed in writing or orally and generally cover
such issues as rates of pay and overtime entitlements, pension entitlements, hours of
work, the normal place of work, holiday entitlements, the right to protective leave,
grievance and dispute resolution procedure, the periods of notice required by both the
employer and employee on termination of employment, as well as normal company rules.

There may also be terms which deal with such issues as the probationary period. The
general rule with this term is that the probationary period should not last longer than a
year. However there is no legislative provision that precludes an employer from including
a term in the contract allowing for an extension of the probationary period, where
appropriate.

Often there are clauses regarding the right of employer to search employees and there
may well be compulsory retirement age provisions in the contract.

There are also confidentiality clauses or restraint of trade clauses. The confidentiality
clause protects the employer against the employee disclosing trade secrets, confidential
information or commercial data. Also employers often want a restraint of trade clause
which restricts the employee’s access to future employment with his former employer’s
competitors.

Sometimes it may be difficult for an employer to put all these terms and conditions into
the employment contract and therefore they often assimilate all general terms and
conditions relating to the employment contract into an employee handbook, which is given
to the employee at the same time they receive their contract. The employer should ensure
that there is a clause in the contract of employment, which states that the handbook is to
be interpreted as part of the employment contract. Once signed by all relevant parties
both the employer and employee should retain a copy of the contract.

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 Summer 2009

Question 4

Part A

Fair Reasons for Dismissal

Section 6(4) of the Act specifies a number of circumstances that render a dismissal fair:

 Employees Lack of Competence, Capability and Qualifications: It is a fair

dismissal to dismiss an employee shown to be incapable, incompetent or lacking the
necessary qualifications to perform the tasks he or she was employed to do. Although
the term has not been statutorily defined, capability has been interpreted as relating to
a reduction in an employee’s physical or mental capacity to do his job, for example, a
driver losing his sight, or inadequate health to perform the task. Dismissals for
capability usually relate to problems the employee has in relation to attendance at
work. Competence is considered to relate to work performance and the intellectual
ability to complete the work. An employer’s subjective assessment must be justified
by reference to some objective benchmark. Qualifications may be academic,
occupational, vocational, technical or otherwise – such as a bus driver having his
driving licence revoked.

 Employees Conduct: In order to provide grounds for unfair dismissal, the conduct
must be of such a serious or continuing nature as to amount to gross misconduct. The
Courts have generally taken the view that such categories of misconduct are strictly
limited and normally only include conduct involving dishonesty and violence.

It should be noted that employees may be summarily dismissed for ‘serious

misconduct’. This in effect is a dismissal without notice, although the employer must
still comply with fair procedures.

Where the employee commits continuous acts of misconduct then the employer
will be expected to demonstrate that: (a) the employee was formally warned of his
shortcomings, (b) the employee was advised of the standards that were required, (c)
the employee was given an adequate opportunity to meet those standards, and (d)
the employee was warned that he would be dismissed if the standards were not met –
examples of continuous misconduct would be absenteeism or constantly being late for
work.

Acts of isolated misconduct should only warrant a warning and not a dismissal.

 Redundancy: An employer is entitled to dismiss an employee on the grounds of

redundancy, provided he can establish that it is a genuine redundancy and that the
person was fairly selected. Redundancy is defined by the Redundancy Payments
Acts 1967–2003. The Act provides that redundancy can arise in five situations, as
follows:

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  Where the business ceases to exist;
 Where the need for employees has diminished;
 Where the position of the employee no longer exits;
 Where the work is to be done in a different manner, for which the employee is
neither trained nor qualified; or
 Where the work is to be done by someone who can also do other work.

Unfair Reasons for Dismissal

Section 6(2) of the 1977 Act, as amended, provides that dismissal in a number of
circumstances is always automatically unfair, and can never be justified. These include:

 Dismissal as a consequence of trade union membership and activities, either during

or outside working hours;
 Dismissal resulting wholly or mainly from the religious or political opinions of the
employee;
 Dismissal due to the race, colour, ethnicity or sexual orientation of the employee;
 Dismissal due to the age of the employee or as a consequence of their membership
of the travelling community;
 Dismissal for taking part in a lawful industrial action or a strike against the employer;
 Dismissal resulting from the employee’s participation (or threat to participate) in legal
proceedings against the employer;
 Dismissal because of the pregnancy of the employee (unless it prevents the
employee from carrying out their duties properly, and the employee has refused the
offer of a suitable alternative, or that there was no suitable alternative available), or
because the employee has exercised their rights under the Adoptive Leave Act, 1995
or the Parental Leave Act, 1998; and
 Dismissal because the employee exercised the right to be paid the minimum wage.

Part B – Section 1

Five express terms of an employment contract are:

I. Job title and description.

II. Provisions relating to pay.
III. Hours of work.
IV. Place of work and if there is a requirement to work at different locations.
V. Holiday entitlements.

Part B – Section 2

Four implied duties of an employee are:

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 I. To obey lawful and reasonable instructions.
II. To respect the employer.
III. To act reasonably using appropriate care and skill.
IV. Duty to act in good faith and in the best interests of the employer.
V.

Autumn 2009

Question 3A

Unfair Reasons for Dismissal

Dermot needs to be made aware of the provisions of Section 6(2) of the 1977 Unfair
Dismissals Act, as amended by Section 5 of the 1993 Act. This provides that dismissal in a
number of circumstances is always automatically unfair, and can never be justified. These
include:

 Dismissal as a consequence of trade union membership and activities, either during or

outside working hours;
 Dismissal resulting wholly or mainly from the religious or political opinions of the
employee;
 Dismissal due to the race, colour, ethnicity or sexual orientation of the employee;
 Dismissal due to the age of the employee or as a consequence of their membership of
the travelling community;
 Dismissal for taking part in a lawful industrial action or a strike against the employer;
 Dismissal resulting from the employee’s participation (or threat to participate) in legal
proceedings against the employer;
 Dismissal because of the pregnancy of the employee (unless it prevents the employee
from carrying out their duties properly, and the employee has refused the offer of a
suitable alternative, or that there was no suitable alternative available), or because the
employee has exercised their rights under the Adoptive Leave Act, 1995 or the Parental
Leave Act, 1998;
 Dismissal resulting wholly or mainly from the exercise of rights under the National
Minimum Wage Act 2000.

Therefore Dermot would seem to have a good case for an unfair dismissal action on the
grounds of his litigation regarding his occupational injury.

If Dermot’s redundancy turns out to be a legitimate, he will get 2 weeks wages for every year
he has worked with the company together with a bonus week. However irrespective of what
he actually earns, there is a cap on the weekly amount he will receive which is € 600 per
week. This is why statutory redundancy is not very attractive for high paid workers.

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 Summer 2010

Question 1A

A (i) Redundancy is defined in Section 7(ii) of the Redundancies Payment Act 1967 as
being dismissal attributable wholly or mainly to

a) the fact that his employer ceased, or intends to cease to carry on the
business for the purpose of which the employee was employed by him or has
ceased, or intends to cease to carry on that business in the place where the
employee was so employed or

b) the fact that the requirements of that business for employees to carry out
work of a particular kind, or for employees to carry out work of a particular
kind in a place where they were so employed has ceased or diminished or is
expected to cease or diminish.

A (ii) (i) Must be over sixteen.

(ii) Must be employed under a Contract of Service.

(iii) Dismissal must be as a consequence of a redundancy.

A (iii) Statutory redundancy is two weeks’ pay for every year of service. This is no longer
linked to age. On top of this there is a bonus week. There is a sealing to the
maximum pay per week which is €600.00 per week.

Question 3B

B (i) To act in good faith and the best interest of the employer.

B (ii) To maintain confidentiality.

B (iii) To follow all lawful and reasonable instructions. In this situation Edwards actions
clearly amount to breach of duty of fidelity as he put his own interests ahead of that
of his employer and in fact his own interest was in direct conflict with the interests of
his employer.

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 Autumn 2010

Question 4

Part A

Irrespective of whether the employment contract is in writing or otherwise, the statutory

requirement imposed upon the employer to provide certain information to employees by
virtue of minimum notice in the Terms of Employment Act 1973 as amended by the Terms of
Employment (Information Act) 1994 to 2001. The legislation requires the employer to give
detailed written information to an employee with regard to the terms of their employment. An
employee must, within two months of the commencement of employment, be supplied with a
written copy of the following information:-

(a) The full name of the employer and employee.

(b) The address of the employer and the principle place of work or if there is no fixed/main
place of work, a statement that the employees are required or permitted to work at
various places.

(c) The title of the job or the nature of the work.

(d) The date of commencement of the employment.

(e) The particulars of pay, rate and method of calculation.

(f) The particulars concerning the hours of work, holiday entitlements.

(g) The particulars concerning sick pay, incapacity, pension schemes.

Part B

1. To provide work – the general view is that an employer is not under any legal
obligation to provide work for an employee, in effect no breach of duty will occur
provided the employee continues to be paid even though there may be no work
available. The general rule however might not hold true where the employee is
employed a piecemeal or commission basis or the employee is the skilled employee
and where the need to work on a regular basis is required in order to maintain skills.

2. To ensure safety. The employer has a duty to take all reasonable care to ensure the
safety of the employee. Most of these duties are contained in various pieces of
legislation.

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 3. To provide paid holiday leave. This provision of holidays is generally a matter of
contractual agreement between the parties although statute provides minimum
holiday periods for all employees regardless of status or service.

4. To treat all employees with respect. The foundation of the employment relationship
is presumed to be a mutuality of respect, trust, and confidence and the employer
must not act in any way calculated to damage such mutuality. Consequently,
employers cannot treat their employees in an abusive manner and must be prepared
to address any grievance they may have.

5. The right to receive a reference. It was decided in Lint v Johnson that no action can
be brought against an employer for failure to furnish a reference. However the
decision is not so definitive. It now seems to be the case that an employer is obliged
if confirm that the employee worked for the employer detailing what position he
occupied, his main duties and responsibilities and the date of commencement and
cessation of service. Additional employer or his failure to provide reference may
amount to a claim for discrimination under the terms of the Equality Acts. There is
no legal obligation to provide an account of the employee’s behaviour and
performance during the period of employment.

Part C

1. To be available for work. The employee has a duty to be available for work for the
hours that they said they would be. These are usually specified in the Contract of
Employment.

2. To obey lawful orders – the employee has a duty to obey all reasonable lawful orders
given to him by his employers. However the employer has no right to give orders
that are manifestly unreasonable wholly connected with the employee’s duties.

3. To exercise care and skill. The employee has a duty to exercise all reasonable care
and skill in the performance of his work.

4. To act with trust and confidence and good faith - an employee is obligated to act in
good faith in dealing with the business of his employer. Essentially this requires the
employee to act honestly in the interests of the employer.

5. Duty to disclose breaches of duty – Depending upon the status or position of the
employee, the employee may be obliged to report breaches of duty by fellow
employees. In general the higher position the employee holds, the great the burden
placed upon him.

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 Autumn 2011

Question 3D

Remedies: (1) reinstatement: where the employee is restored to the same position of
employment with the same employer and treated as if they had not been dismissed and
are restored to exactly the same job with the same rights and conditions (complete
continuity of employment), (2) re-engagement: when the employee is restored to
employment with the employer on terms and conditions as outlined by the Court/Tribunal
– generally, it is in a different job role – the job is not the same but is suitable for the
employee and comparable to their previous position, or (3) compensation – maximum 2
years salary – minimum 4 week’s salary – but in all circumstances the dismissed
employee is expected to mitigate their losses. (0-5 marks)

Summer 2012

Question 2

(a) Prerequisites to Claim Unfair Dismissal: (1) the worker must be an employee,
employed under a contract for services, (2) the worker must have been in continuous
employment for at least one year with the employer (subject to limited exceptions), (3)
the worker must not be employed in a excluded profession (such as members of An
Garda Siochána, or persons employed by VEC’s etc.)

(b) Tests to Determine the Status of a Worker: ( 1) Control Test: this test questions
whether the employer controls all aspects of the workers work – in effect have they
control over the work done, the method of completion, the means employed to achieve
the result, and the time and place the task is to be done – there are inherent problems
with the test in the context of professional workers – who are subject to limited control –
such as in Tierney v An Post (2000), (2) Integration Test: this test asks whether the
worker is employed as part of the business, and whether the work done is integral to the
business – the application of this case was illustrated in Re Sunday Tribune (in
Liquidation) (1984) and in Kelly v Irish Press (1985) in the context of journalist/editors
who were described as contractors but integrated into the business – the main problem
with the integration test is the difficulty in application to small businesses, (3) Enterprise
Test: this test questions whether the person has engaged himself to perform services as
a person in business on his own account – it asks whether the worker has made a
financial investment in the work, can he reap a reward/profit from effective performance
of the job, and whether there is a financial risk is undertaking the work – in McDermott v
Loy (1982) the lack of entrepreneurship indicated an employee relationship – problems
with the enterprise test arise in the context of employees paid on a commission basis, (4)
Mixed/Reality Test: in this test all factors are considered equally (more focus on control
in the mixed test) and an overview is taken – relevant factors in determining status under
this test include: method of pay, right to select and dismiss, ability to delegate

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 performance of duties, provision of training and equipment, level of financial risk
undertaken by the worker, whether the worker has the opportunity to profit from effective
management of the task – the application was seen in Mahon v Henry Denny & Sons Ltd
1997 where the worker was classified as a employee by taking a holistic view of all
aspects of the working relationship.

(c) Conclusion that Sarah is likely to be classified as an employee, as she is controlled in

terms of hours/days of work, teaching and syllabi etc…, integrated in terms of
attendance at exam boards, there is no evidence of entrepreneurship – therefore in
reality, when all factors are balanced, the likelihood is that she will be classified as an
employee.

Autumn 2012

Question 3A

(1) Code of Practice on Disciplinary Procedures: (1) employee grievances must be

examined and processed fairly, (2) details of any allegations or complaints must be put to
the employees involved, (3) the employee(s) must then be given the opportunity to respond
fully to the allegations or complaints, (4) the employee(s) must be offered the right to be
represented during the procedure, (5) the employee(s) has a right to a fair and impartial
determination of the issues, and (6) the employee(s) has the right to be penalised in a
manner that is proportionate to the gravity of the offence committed.

(2) Conclusion: the actions of Fiona’s employer are likely to be classified as unfair, given that
there was no notification, representation, right to reply, and the penalty was disproportionate
to the offence.

(3) Constructive Dismissal: this is where the employee terminates the contract under which
they are employed because of the conduct of the employer – the conduct of the employer
must be sufficiently serious as to entitle the employee to resign from their employment – in
this instance the onus lies on the employee to prove that what has happened amounted to a
dismissal.

(4) Prerequisites: (1) an employee must have a minimum of one year’s continuous service
(except where dismissal results from maternity, trade union membership, or exerting the
right to minimum wage), (2) the worker must be employed under a contract of service, (3)
the employee cannot have reached normal retiring age, (4) an employee cannot be a
member of the Defence Forces or the Garda Síochána, (5) the employee cannot be
employed by their family member in their home or on their farm, (6) the employee cannot be
employed at sea, (7) the employee cannot be employed on a probationary period, (8) the
employee cannot be working illegally within the state, and (9) the employee cannot be
employed in certain public servants positions.

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 (5) Conclusion: the actions of Fiona’s employer are likely to be classified as grounds for a
claim for constructive dismissal, as they are attempting to penalise Fiona for a failure to alter
her contract.

Summer 2013

Question 3C

Fair Dismissal: (1) lack of competence, (2) lack of capability, (3) lack of qualifications, (4)
redundancy, (5) misconduct, or (6) illegality – Procedures to effect a fair dismissal: the
employer must: (1) tell the employee of any allegations against him, (2) give the employee a
copy of any evidence, (3) give the employee a right to respond and make representations,
(4) allow the employee to bring a witness/representative to the disciplinary meeting, (5) give
the employee the right to address a adjudicating body and make any pleas in mitigation, and
(6) give the employee a statement of the reasons for the dismissal.

Autumn 2013

Question 1B

Tests to determine the distinction between an Employee and Contractor:

(1) Control Test: questions whether the employer controls all aspects of the employees work
– in effect have they control over the work done, the method of completion, the means
employed to achieve the result, and the time and place the task is to be done – there are
inherent problems with the test in the context of certain workers – who are subject to limited
control – such as in Tierney v An Post (2000),
(2) Integration Test: this test asks whether the worker is employed as part of the business,
and the work done is integral to the business – the application of this case was illustrated in
Re Sunday Tribune (in Liquidation) (1984) and in Kelly v Irish Press (1985) in the context of
journalist/editors who were described as contractors but integrated into the business – the
main problem with the integration test is the difficulty in application to small businesses,
(3) Enterprise Test: this test questions whether the person has engaged himself to perform
services as a person in business on his own account – it asks whether the worker has made
a financial investment in the work, can he reap a reward/profit from effective performance of
the job, and whether there is a financial risk in undertaking the work – it was applied in
Mahon v Henry Denny & Sons Ltd (1997) and in McDermott v Loy (1982) wherein the lack of
entrepreneurship indicated an employee relationship – problems with the enterprise test
arise in the context of employees paid on a commission basis,
(4) Mixed/Reality Test: in this test all factors are considered equally (more focus on control in
the mixed test) and an overview is taken – relevant factors include: method of pay, right to
select and dismiss, ability to delegate performance of duties, provision of training and
equipment, level of financial risk undertaken by the worker, whether the worker has the
opportunity to profit from effective management of the task – the application was seen in

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 O’Condealbhain (Inspector of Taxes) v Mooney (1990) where the worker was classified as
an employee by taking a holistic view of all aspects of the working relationship.

Conclusion: It is more likely that Mary will be classified as an employee as she is (1)
controlled (attending all meetings), (2) integrated (attending social functions connected with
employment – and the provision of her own office), (3) there is no evidence of
entrepreneurship, as there is no financial investment/risk involved in her performance of the
job, and (4) therefore in reality she is likely to be classified as an employee (the issue of
statutory deductions is irrelevant is making this determination).

Summer 2014

Question 3A

i) Redundancy: Section 7(2) of the Redundancy Payments Act 1967 defines a redundancy
as arising where the employer has ceased, or intends to cease, to carry on the business
for the purposes of which the employee was employed by him or has ceased, or intends
to cease, to carry on that business in the place where the employee was so employed, or
where the requirements of that business for employees to carry out work of a particular
kind, or for employees to carry out work of a particular kind in the place where they were
so employed, has ceased or diminished or is expected to cease or diminish.

ii) Eligibility Requirements:

 The worker must be over 16,
 Be employed under a contract of service, and
 Have been employed by the employer for at least two years after their 18th birthday.

iii) Conclusion: Porter is not entitled to a redundancy payment in these circumstances as

his position is still available. Therefore this is not a genuine redundancy, in reality he has
been dismissed for gross misconduct.

Autumn 2014

Question

(b) Statement of Employment: In accordance with the provisions of the Minimum Notice
and Terms of Employment Act 1973-2005 a written statement of employment should
provide the following details:

(1) The proper names of the employer and employee,

(2) The address of the employer and the principal place of business, or if there is no
fixed/main place of work, a statement that the employee is required/permitted to work
at various places,
(3) The title of the job or the nature of the work,

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 (4) The date of commencement of employment, and in the case of a temporary contract,
the duration of the contract/date that the contract expires,
(5) The particulars of pay, the rate and method of calculation, frequency of payment,
overtime, commission, bonuses and their method of calculation,
(6) The particulars concerning hours of work and holiday entitlements,
(7) The particulars concerning incapacity, sick pay arrangements and pension schemes,
(8) The period of notice that must be given by both the employer and the employee for
the termination of the employment contract, and
(9) A reference to any collective agreement(s) that directly affects the terms and
conditions of the employment.

Summer 2016

Question 1

(a) Key Differences between an employee and a self-employed person/independent

contractor: The following are the main differences: (1) protective employment legislation –
this only applies to employees who have rights pursuant to legislation such as the Unfair
Dismissals Act, Minimum Notice Act, Redundancy Payments Act, Maternity and Adoptive
Leave Acts, Payment of Wages Act etc. – none of these pieces of legislation bestow rights
on independent contractors, (2) vicarious liability – in general terms an employer is
vicariously liable for the actions of employees but not independent contractors – therefore
where the actions of an employee cause a loss to a third party then the employer is
financially liable – whereas the contractor is personally liable for any such losses, (3)
preferential payments on liquidation – when a company is placed in liquidation any salary
(up to a maximum of €10,000) owed to an employee and any untaken annual leave is
classed as a preferential debt – whereas any monies due to an independent contractor is
classed as an unsecured debt, (4) the tax and (5) social welfare code also differentiates
between them – employees pay tax on a PAYE basis – whereas contractors are self-
assessed – in addition, employees have access to certain payments under the social welfare
code (such as disability allowance, unemployment assistance (job seekers benefit) where
their working week is reduced to 3 days or less, or where they lose their job) which are not
available to independent contractors, and (6) an employee may obtain social benefits (such
as health insurance, pension, training, education etc.) from an employer that are not
accessible to a contractor. (any 4 = 4 marks)

(b)Tests to Determine the Status of a Worker: (1) Control Test: this test questions
whether the employer controls all aspects of the workers work – in effect have they control
over the work done, the method of completion, the means employed to achieve the result,
and the time and place the task is to be done – there are inherent problems with the test in
the context of professional workers – who are subject to limited control – such as in Tierney
v An Post (2000), (2) Integration Test: this test asks whether the worker is employed as part
of the business, and whether the work done is integral to the business – the application of
this case was illustrated in Re Sunday Tribune (in Liquidation) (1984) and in Kelly v Irish
Press (1985) in the context of journalist/editors who were described as contractors but
integrated into the business – the main problem with the integration test is the difficulty in
application to small businesses, (3) Enterprise Test: this test questions whether the person
has engaged himself to perform services as a person in business on his own account – it
asks whether the worker has made a financial investment in the work, can he reap a
reward/profit from effective performance of the job, and whether there is a financial risk in

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 undertaking the work – in McDermott v Loy (1982) the lack of entrepreneurship indicated an
employee relationship – problems with the enterprise test arise in the context of employees
paid on a commission basis, (4) Mixed/Reality Test: in this test all factors are considered
equally (more focus on control in the mixed test) and an overview is taken – relevant factors
in determining status under this test include: method of pay, right to select and dismiss,
ability to delegate performance of duties, provision of training and equipment, level of
financial risk undertaken by the worker, whether the worker has the opportunity to profit from
effective management of the task – the application was seen in Mahon v Henry Denny &
Sons Ltd 1997 where the worker was classified as a employee by taking a holistic view of all
aspects of the working relationship. (any one = 2 marks, any one case = 1 mark)

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