In a landmark decision overturning the Court of Appeal, the Supreme Court has determined that the delivery drivers of Domino’s Pizza were employees and not independent contractors. Our Employment Law & Benefits team reviews the implications of this decision for employers and those in the gig economy.

The Court of Appeal in June 2022 overturned the High Court in deciding that delivery drivers of Karshan (Midlands) Ltd, trading as Domino's Pizza (Karshan), should be treated as independent contractors and not PAYE employees for tax purposes.

However, the Supreme Court, on 20 October 2023 allowed the appeal by the Revenue Commissioner when deciding that the drivers were employees for the purposes of the Taxes Consolidation Act 1997. Crucially, and in a significant departure from previous decisions on determining worker status, the Supreme Court decided that excessive focus, or importance, was placed on “mutuality of obligation” as one of the fundamental pillars of the employment relationship. Instead, the Supreme Court held that greater significance should be placed on the degree of control under which the worker performed the work.

See our previous articles on the High Court and Court of Appeal decisions.

Classifying an employment relationship

The traditional approaches for classifying an employment relationship relate to the control, enterprise and integration tests. The Supreme Court said that a key question in the Karshan case was how these various approaches for classifying an employment relationship should apply to people engaged in work involving no ongoing obligation on the part of the employer to provide work, or on the worker to accept it when offered.

In Karshan, workers entered into an “umbrella” agreement under which drivers committed to confirm availability for work one week in advance and they would then be rostered accordingly. Although there was no mutuality of obligation under this “umbrella” contract, the Supreme Court held that these single stints of work are capable in law of comprising contracts of employment even if they are not accompanied by a commitment by the employer to actually give work in advance of the specific engagement.

Contract of service or for services

The Court directed that the question of whether in any given case a worker is an employee should be resolved by reference to the following five questions:

1. Does the contract involve the exchange of wage or other remuneration for work?
2. If so, is the agreement one where the worker is agreeing to provide their own services, and not those of a third party, to the employer?
3. If so, does the employer exercise sufficient control over the supposed employee to render the agreement one that is capable of being an employment agreement?
4. If requirements 1-3 are met, the decision maker must then determine whether the terms of the contract between employer and worker and the reality of the working arrangements are consistent with a contract of employment, or whether they point to some other form of contract.
5. Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the foregoing.

Comment

This is a tax case, and the Supreme Court expressly said that its decision would not determine that drivers had continuous service for employment rights legislation. However, it is of critical importance to employers given the overlap in the tests used by the Revenue Commissioner and also bodies adjudicating on employment rights, for example the WRC and civil courts, in determining worker status. Where a contractor is misclassified, this gives rise to considerable risks, including potential tax liabilities, potential social welfare liabilities and potential employment law claims.

Employers who engage contractors should urgently review how the arrangement operates in practice, and review the relevant contracts in place. The new 5 step test will also be relevant.

For more information and expert advice, please contact a member of our Employment & Benefits team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.