by Wendy Doyle, partner in Tully Rinckey’s Dublin Employment, Litigation and Intellectual Property and Data Protection practices.

The world of work is changing at a dramatic pace. The days of securing a 9-5 job is no longer the aim of many and the technological advances of recent years mean that we can in reality work anywhere at any time. There are now a myriad of job types and ways of working that did not previously exist and the rise of the “gig economy” cannot be avoided.

In response to the rising gig economy, the World Employment Conference held in Dublin earlier this year focused on “Managing the Extended Workforce” and “Talent as a service: How to navigate a new just-in-time, on-demand workforce ecosystem?”

So what exactly is the gig economy? It can be described as a way of working flexibly where workers get paid for “gigs” or work they undertake. Some workers also have full-time jobs in conjunction with their “gigs.” Many see project-based working, flexible working conditions and breaks between contracts as very attractive, particularly those with young families as it allows them choices and freedom they may not otherwise have with a typical 40-hour week contract.

It also should be noted, however, that many gig workers are deemed not to be employees for the purposes of employment law legislation, hence they do not have the protections many regular, or full-time employees have and this is one of the key challenges they face.
The key question which arises, then, is how does the current Irish employment framework fit these type of gig economy workers?

In December 2017, the Minister for Employment Affairs and Social Protection published the Employment (Miscellaneous Provisions) Bill 2017. The long title of the Bill provides that it is “An Act to provide for a requirement that employers provide employees with certain terms of employment within a certain period after commencing employment; to impose sanctions for certain offences; to further provide for a minimum payment due to employees in certain circumstances; to prohibit contracts specifying zero as the contract hours in certain circumstances and to provide for the introduction of banded contract hours; to further provide for prohibition of penalization.” At the time of writing the Bill has passed the fifth stage of the Seanad and is currently at the report stage. It may still be subject to change however the Bill as currently drafted includes a number of important provisions:
Bans the use of “zero hours” contracts except in very limited circumstances.
Requires employers to provide new employees with a written statement of their terms and conditions within five days of commencing employment. Employers are currently obliged to provide these terms and conditions within two months of commencement.
Provides employees with a right to minimum payment where they are required to be available to work, but are not called into work.
Introduces a right to “banded hours” which are considerably expanded upon in the Bill.
Makes it a criminal offence for employers to designate an employee as “self-employed.”

There have been a number of high-profile cases in recent years, most notably in the UK which has brought the issue of the gig economy to the forefront. The most recent case is that of Pimlico Plumbers v Smith [2018] UKSC 29. Here Mr. Smith had a contractual arrangement with Pimlico Plumbers whereby he would be provided work when it was available, however this was not guaranteed and equally he also had the freedom to refuse to accept an offer of work. Ultimately the Supreme Court in the UK found that mutuality of obligation existed and hence Mr. Pimlico could not say he was a freelance “gigger” or self-employed in its entirety.

The case of Aslam v Uber [2017] IRLR 4 concerned the status of Uber drivers in the UK. Here the UK Tribunal examined the terms and conditions of the Uber drivers in detail and how the model worked, concluding that the drivers were indeed workers. Despite Uber stating it was simply a technology platform providing opportunities for drivers, the Tribunal rejected this, stating that it ran a transport business and employed workers to carry out these duties. There have been several appeals by Uber in relation to this ruling.

In Dewhurst v CitySprint [2202512/2016] it was held by the Employment Tribunal in the UK that a bike worker was an employee noting the level of control placed on Mr. Dewhurst.

In November 2017, the Independent Workers Union of Great Britain v RooFoods Limited t/a Deliveroo (2017 WL 05632856) judgement was delivered by the Central Arbitration Committee in the UK. The case focused on the central finding of substitution and found that Deliveroo drivers were not workers for the purposes of UK legislation. There have been several cases in Ireland in this regard which are too numerous to mention here.

In Ireland, the case of Electricity Supply Board v Minister for Social Community and Family Affairs [2006] IEHC 59, held that meter readers were employees, as inter alia, they were required to carry an ESB ID and were restricted in their ability to delegate work. There was also a high level of control exercised over the meter readers.

In the case of Minister for Agriculture and Food v Barry [2008] IEHC 216, the Minister contended that the claimants, who were veterinary inspectors, were independent contractors. Here the main focus was on mutuality of obligation where there is a requirement that there must be a mutual obligation on an employer to provide work for the employee and in return the employee agrees to perform the work. The difficulty for the Court was that the arrangement had some attributes of a contract of services (employee) and contract for services (self-employed).

A recent ERSI study “Measuring Contingent Employment in Ireland,” which was sponsored by the Workplace Relations Commission found that “non-permanent employment” was not an extensive feature of the labour market in Ireland and whilst this increased slightly during the recession they have retreated to pre-recession levels amounting to approximately 8 to 9 percent of total employment. It has been commented that these figures do not reflect the reality of the market and may not capture the numerous workers who may be incorrectly designated as self-employed.

The Irish system has been slow to catch up on rapidly changing developments in this area and may need to follow the UK system, which has, in essence, three basic categories of persons who provide services, namely employees who are most protected, self-employed persons at the other end of the scale and “workers” in the middle who do not have full employment protections, but are entitled to paid holidays and the national minimum wage.

What is certain is that with technological advances, the constantly evolving nature of how work will be performed in the future is unlikely to change any time soon.

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