Our briefing on the recent Irish Supreme Court judgment in Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza can be read here.  As we flag in our briefing, it must be noted that the decision dealt with specific legislative concepts applicable under the Taxes Consolidation Act 1997, and it remains possible that divergences could occur between Revenue and bodies adjudicating on employment rights, such as the Workplace Relations Commission. Our article notes:

“The Supreme Court noted that the Taxes Consolidation Act 1997 does not require an element of continuity of service and as such, the question of whether the drivers accrue continuity of service for the purposes of employment rights legislation such as redundancy or unfair dismissal, is not answered by this decision of the Court. This means that companies engaging workers in the gig economy on contracts for services may be liable for payment of pay related taxes and social contributions if those workers are found to satisfy the above test. However, …. It remains to be seen how this decision will be applied in the context of employment rights claims where continuity of service is by its very nature an important element.”

The recent UK Supreme Court decision in the Deliveroo judgment (Independent Workers Union of Great Britain v Central Arbitration Committee and another) determined quite different and distinct issues; however, in commentary, it may be inaccurately paraphrased as finding the opposite of the Domino’s judgment i.e. that the Deliveroo riders were held not to be employees. The Deliveroo judgment addressed entirely different points, namely whether the Deliveroo riders fell within the scope of Article 11 of the European Convention of Human Rights (“ECHR”) (so that the rights conferred by Article 11 to join and be represented by a trade union were conferred on them) and, if the riders had Article 11 rights, did those rights include a right that the UK legislate to require Deliveroo, as their employer, to engage in collective bargaining.

Both questions were answered in the negative. In this regard, it is worth noting that under UK law there is a statutory term “worker”, for which there is no direct comparator in Ireland.  Importantly, that the Deliveroo riders were not “workers” had been determined before the UK Central Arbitration Committee and permission for judicial review of that finding was not granted by the High Court.

Accordingly, the UK Supreme Court case proceeded on the basis that the riders were not workers and related solely to whether the riders were in an employment relationship with Deliveroo, such that the rights enshrined in Article 11 were triggered. No such employment relationship was held to exist between the riders and Deliveroo.  Therefore, appropriate care must be taken before assuming the Deliveroo judgment will have any persuasive authority in Ireland or in asserting it found the opposite of the Domino’s judgment.

For more information on this topic please contact a member of the Employment Group. 

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