Dáil Éireann Debate, Tuesday - 14 November 2023
302. Deputy Paul Murphy asked the Minister for Social Protection if, in relation to a matter (details supplied), she will now accept that the approach of using precedential group and/or class decisions to make insurability of employment determinations on groups and/or classes of workers is unlawful [49833/23]
View answer303. Deputy Paul Murphy asked the Minister for Social Protection if, in relation to a matter (details supplied), she will clarify what steps she is taking to compensate workers for their losses by being unlawfully misclassified as self-employed by group and/or class by the Social Welfare Appeals Office, which the Minister has been aware of since at least 1995. [49834/23]
View answer304. Deputy Paul Murphy asked the Minister for Social Protection if, in relation to a matter (details supplied), she will make a public statement to the effect that the failure of the Social Welfare Appeals Office and Senior Management of her Department to halt the unlawful use of precedential sample/test cases when her Department was first informed of this unlawful practice may now result in a significant loss in PRSI and taxes, as per the Supreme Court comments. [49835/23]
View answerI propose to take Questions Nos. 302, 303 and 304 together.
My Department welcomes the recent judgement of the Supreme Court on the key factors to be considered when classifying an individual’s employment status and the significant clarity it provides on these matters.
The matter of ‘test cases’ for use in determining employment status has been raised on multiple occasions at various Dáil Committees and elsewhere and my Department’s response remains unchanged. The Department has advised that it does not rely on test cases to determine the employment status of all workers in a sector in the manner suggested.
For the benefit of the Deputy, and notwithstanding that these issues have been dealt with previously on a number of occasions, I will again set out the background.
In the 1990s, a number of so-called ‘test cases’ relating to the insurability status of a person were examined by the Department to support the identification of criteria that could be used by Deciding Officers and Appeals Officers for the purpose of assessing each case on an individual basis. The criteria identified from the examination of these cases formed the basis of the approach subsequently agreed with the Social Partners under the Programme for Prosperity and Fairness and set out in the Code of Practice for the Determination of the Employment or Self-employment Status of Individuals. These criteria are set out in sections 7 and 8 of the Code of Practice and are applied by Deciding Officers and Appeals Officers on each occasion that they assess the insurability of a worker as being either an employee or self-employed. Employment status decisions are never made by the Department without having carried out an investigation into the circumstances of the individual’s engagement.
Separately, the Department has indicated that it is open to taking a ‘sample cases’ approach to the determination of insurance classification, using the criteria set out in the Code, in cases involving multiple workers performing the same work for a single employer. In indicating its openness to this approach, the Department has always stressed that it would only do so by agreement with all of the parties concerned, that each worker will always be given the option of having their case determined on an individual basis and will always have the option of appealing any decision on an individual basis.
As the Deputy is aware the Social Welfare Appeals Office is an office of my Department, with appeals officers who are independent in their decision making functions. Notwithstanding this, the Social Welfare Appeals Office also does not rely on test cases to determine the employment status of all workers in a sector in the manner suggested.
In relation to the Revenue matters referred to by the Deputy, it is important to emphasise the distinction between the remits of my Department and that of the Office of the Revenue Commissioners. The Revenue Commissioners make decisions on tax matters. My Department has the statutory power to determine which social insurance class applies to an individual. The Revenue Commissioners do not make decisions regarding social insurance matters, only tax matters.
I trust this clarifies matters for the Deputy.
