I move amendment No. 1:
In page 3, before section 2, to insert the following new section:
"2.—Where a respondent to a claim for redress under the Unfair Dismissals Acts disputes that the claimant was an employee of the respondent, it shall be conclusive proof that the claimant was an employee of the respondent if it is shown to the satisfaction of the Tribunal that the respondent was responsible at law for deduction of the tax and social insurance contributions of the claimant.".
This amendment is to try to dispel some of the confusion that exists in regard to what constitutes an employee following the tests applied by the judges in the case law we have in this area. These tests have "splintered in the hands of the judges". I am seeking to ensure in as far as possible that an employee is covered under the Act. I am taking the guideline of the rights under the tax and social welfare Acts so that the test is whether the respondent is responsible at law for deduction of tax and social insurance contributions from the claimant. I deliberately use the term "responsible at law"; otherwise there could also be some confusion about that because the employer may not actually be making those deductions. The test ought to be whether he is responsible at law for so doing. I am seeking to cater on a statutory basis for the case where the person concerned may be deemed to be a contractor or a subcontractor.
The situation is not conclusive at the moment. I am aware of contracts being devised expressly for the purpose of circumventing the terms of the Unfair Dismissals Act, where it is included as an express condition of those contracts that the terms of the Unfair Dismissals Act do not apply. I presume these contracts are the result of professional advice and their stated purpose is to avoid coming under the terms of this Act.
The Minister may respond that this is already provided for, but in my experience and from the advice I have received from colleagues in the trade union movement it is acknowledged that in order to bring a valid claim under the Act claimants must be able to establish that they are employees for the purpose of the Act. An employee can be straightforwardly defined as someone who has entered into a contract of employment or a contract of service, but the Act defines a contract of employment as a contract of service or of apprenticeship whether it is express or implied and, if it is express, whether it is oral or in writing. Where the claimant's status as an employee is in dispute the burden of proving that status lies with the claimant.
The tests which are applied by the Employment Appeals Tribunal to establish the status of the claimant are based on the general legal rules developed by the courts to distinguish between employees and independent contractors under contract for services. It is difficult to fashion a useful general statement which would distinguish between employees and independent contractors. The courts in essence are attempting to determine whether the worker is working for himself or for someone else. In the Ó Coindealbhainv. Mooney judgment, delivered on 21 April 1988, the High Court, for example, considered the issue in the context of a case involving a dispute over income tax liability. In deciding that the respondent was not an employee “Blayney J”, having reviewed the authorities, based his decision on the fact that certain features of the contract were inconsistent with its being one of service. There is confusion and a dispute about it. The old employer-employee relationship is breaking down and has fragmented in many different ways. As a result there can be confusion and the person who considered that he had this resort in the final instance could find when it is too late that he does not have it. The third edition of The Worker and the Law said:
The reader who examines these authorities may end up agreeing with Lord Wedderburn when he wrote that "the legal `tests' have splintered in the hands of the judges, leaving them to say that it is `not practicable to lay down precise tests' or a `hard and fast list', that there are `too many variants' so `you look at the whole picture'. Most Courts now appear to use the `elephant test' for the employee — an animal too difficult to define but easy to recognise when you see it".
Will the Minister acknowledge that it is a fact of the structure of the workforce now that many people are employed as contractors and subcontractors, independent in the sense that they do not fall under the old definition of a contract of service, and that it is important that these people are given the protection of the Act?
Recently in my constituency 22 employees were let go because the company had gone into liquidation. It sprung up again under a different guise, showing that the Phoenix syndrome is still alive, and 19 of the 22 original employees have been given the option to return to work for the same employer doing essentially the same work, but this time under a contract which expressly provides that they will not have the protection of the Unfair Dismissals Act.