The Chief Appeals Officer has advised me that the discussion in relation to the use of ‘test cases’ before the Joint Committee on Employment Affairs and Social Protection on 5th December 2019 related to a particular set of circumstances dating back to the early 1990s where a number of cases involving a number of employers in a particular sector were selected as so called 'test cases' to identify criteria that could be used to improve the quality and consistency of decision making in relation to a particular type of employment. The Chief Appeals Officer has advised me that the test cases were not used to determine a particular outcome on a 'group basis' that would be applied to all cases from that employment sector, as seems to have been inferred by some observers, but instead, it is her understanding, that the cases informed the identification of criteria that could be applied to each individual case in that sector. Decision makers (both Deciding Officer and Appeals Officers) would then apply these criteria to all cases that came before them and depending on the circumstances of each case, as assessed by reference to these criteria, an individual decision would be made in each case. This approach was a precursor to the subsequent development on a tripartite basis of the Code of Practice for Determining Employment or Self-Employment of Individuals Status under the Programme for Prosperity and Fairness, a code which was subsequently updated in 2007 under the Towards 2016 Social Partnership Agreement.
The Chief Appeals Officer has also advised me that she does not as a rule take group decisions based on test cases. However, she has advised that occasionally, and usually where a number of workers engaged by the same employer are concerned and have individually submitted an appeal, she is asked to make decisions on a ‘sample’ number of cases. The Chief Appeals Officer has agreed to this approach in very limited circumstances and only with the agreement of both the employer and the workers concerned. This approach has not been adopted during the period of her tenure in any case of an appeal where the classification of a worker as an employee or self-employed is the issue under appeal.
This approach can be an efficient way of dealing with issues that are common in appeal cases and where there are a number of workers attached to an appeal. However, the approach cannot compromise the integrity of the appeal process or deny any individual interested party due process. Each individual always has the opportunity of having any evidence in their own case presented to and considered by an Appeals Officer. An individual decision issues in each case, and can be individually submitted for review to the Chief Appeals Officer or indeed, appealed to the Courts.
I am advised that in the circumstances the Chief Appeals Officer does not consider that a contradiction has occurred but she is happy to clarify the position as outlined.
The Social Welfare Appeals Office functions independently of the Minister for Employment Affairs and Social Protection and of the Department and is responsible for determining appeals against decisions in relation to social welfare entitlements.