Summary Sentence:
The Adjudication Officer concluded that the Complainant did not have an employment relationship with the Respondent under the Terms of Employment (Information) Act 1994, as the evidence indicated that tutors were engaged by parents in a private arrangement with the Department acting only as a payroll agent, thus dismissing the complaint for entitlement to a contract of employment.

Background:
The Complainant, a home tutor since September 2006, presented evidence of her working conditions and pay structure. She earned €37.65 per hour, working 30 hours weekly, but limited to 42 hours. The Respondent set her hours, place of work, and annual leave, based on the academic calendar, without paid sick days. The Complainant provided all teaching materials and dictated the curriculum. It was submitted that she met the Revenue Commissioner’s employment criteria and was not self-employed.

Agent for the Home Tuition Grant Scheme explained the operative criteria whereby parents apply, and hours are assigned based on the child's age. Parents would choose and verify tutors via the Teaching Council. The Respondent would liaise with parents and claimed they had “no direct relationship with tutors”. It was submitted that no travel, sick pay, or annual leave was covered, and the payroll system deducted taxes automatically.

Outcome:
The Adjudication Officer examined whether the Complainant had an employment relationship with the Respondent under the Terms of Employment (Information) Act 1994. The Act mandates employers to provide a written statement of employment terms within one month of employment commencement. Definitions of "contract of employment," "employee," and "employer" were considered, emphasising a contract of service or apprenticeship and the requirement for the employer to pay wages.

The recent Supreme Court decision in The Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino's Pizza [2023] IESC 24 was referenced, outlining criteria to determine worker status. The criteria includes whether a contract involves wage exchange, personal service provision, employer control, the nature of the contractual terms, and legislative considerations. The evidence showed that parents, not the Respondent, engaged tutors under a private arrangement, with payments facilitated by the Department acting as a payroll agent. It was held that this setup did not create a contractual relationship between the Complainant and the Respondent. The Complainant had acknowledged the procedure where parents recruit tutors registered with the Teaching Council, and the Department allocates grant hours.

Ultimately, it was found that no evidence contradicting this arrangement, indicating no employment contract between the Complainant and Respondent. Despite the Complainant's dedication as a teacher, the Adjudicating Officer concluded that the Complainant was not an employee under the 1994 Act. Therefore, the complaint for entitlement to a contract of employment was not well-founded and was dismissed.

Practical Guidance for Employers:
Employers must distinguish between employees and self-employed individuals per the Terms of Employment (Information) Act 1994. Determining whether a worker is an employee or self-employed involves evaluating various factors. Key factors include mutuality of obligation (whether the employer is obliged to provide work and the worker to accept it), control (the degree to which the employer directs how, when, and where work is done), integration (the worker’s role within the organisation), economic reality (financial risk and responsibility for expenses), substitution (whether the worker can send a substitute), and provision of equipment (who supplies the tools needed for the job). Legal precedents, such as the Supreme Court's decision in Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino's Pizza [2023] IESC 24, and guidelines from the Revenue Commissioners help clarify these criteria. Employers should carefully assess these factors, considering both contractual terms and actual working conditions, to ensure correct classification and compliance with legal obligations. Consulting legal advice may be beneficial to avoid misclassification.

The full case can be found here:
https://www.workplacerelations.ie/en/cases/2024/may/adj-00036976.html