Ask a solicitor: A contractor fell off a ladder on my farm
While, in most cases, it would be perfectly clear whether a person is an employee, this is not always so, writes solicitor Karen Walsh.
Dear Reader,Â
At first glance, the question of whether someone is an employee or a contractor seems like it is easily answered, but that is not the case. It can, in fact, often be difficult to decide whether a person is an employee or whether they are self-employed.
A person who is self-employed is referred to as an 'independent contractor'.Â
The importance of the distinction is that the self-employed person is not entitled to rights conferred on the employee. This has far-reaching consequences.
The decision regarding a person’s employment status is reached by looking at what he/she does, how it is done and the terms and conditions under which he/she is engaged to carry out work.
There is ample case law addressing the employee/contractor divide, as many “independent contractors” seek to take cases claiming unfair dismissal or breaches of their employment rights, and each of these cases has resulted in the development of a number of key tests which assist the Court and the employer in determining whether someone is an employee.
Control is an important element. Generally, an employee can be instructed as to which tasks to perform and how to perform them.
In the case of Roche vs. Kelly, the Defendants had a contract with a farmer to build a barn and had employed the Plaintiff to build it for a lump sum. The Defendants were to supply the construction materials, and the Plaintiff was to build the barn to their specifications.
The Defendants monitored the progress of the construction, but at no time did they tell the Plaintiff how to do the job, nor did they supervise his working methods. The Plaintiff had considerable general experience and specific expertise in building barns, and he had carried out similar jobs for the Defendant in the past.
Unfortunately, the Plaintiff was injured during the construction of this barn, and one of the issues was whether he was an employee of the Defendant or an independent contractor.Â
The Supreme Court found that the main factor in defining the relationship is the element of control that the employer can exercise over the employee. In this instance, the Court found that the Plaintiff was not an employee, the Defendants did not have a right to interfere with the manner in which he carried out his obligations, and hence, they did not exercise any control over him.
The extent to which a person is integrated into an organisation is a significant factor also. There must be a personal obligation on an employee to perform the work. An employee is generally obliged to carry out work personally.Â
In contrast, an independent contractor may be able to substitute someone else to do the work. In regards to the Sunday Tribune, a freelance journalist who received commission in advance from a newspaper where that newspaper had no obligation to publish her work was considered to be an independent contractor.Â
By contrast, a staff journalist working 50 weeks per year for the newspaper was an integral part of the newspaper and therefore was considered to be an employee. This case illustrates that the nature of the work itself is not always significant, as both journalists did the same substantive work (writing columns for the newspaper), but each nonetheless had a different employment status.
To answer your particular query, as you will see from the above, it will be necessary to obtain full details from you.
Email: info@walshandpartners.ieÂ
- While every effort is taken to ensure the accuracy of the information contained in this article, Karen Walsh does not accept responsibility for errors or omissions howsoever arising. Readers should seek legal advice in relation to their particular circumstances at the earliest opportunity.
