Self Employed or an Employee, a contract for service (Self Employed) or a contract of service (Employee)

There are many instances where it is not wholly clear if an individual should be treated as self employed or as an employee and Revenue has issued an update Guidelines for Determining Employment Status for Taxation Purposes -Part 05-01-30

This update follows the Supreme Court Judgement of 20th October 2023 in Revenue v Karshan(Midlands) Ltd. t/a Domino’ Pizza and set out the key elements of the judgement and its implications for business engaging employees, workers, contractors or sub-contractors. It deals with the proper tax treatment of the workers concerned, the broader question of employment rights was not considered by the Court in this instant.

The Guidelines run to 33 pages with a further 25 pages showing 19 examples for reference purposes. The Guidelines also states that some businesses have relied on previous decisions of Deciding Officers of the Department of Social Protection, to treat workers as self-employed for the purpose of tax. With the clarification from the judgment, such previous decisions cannot be relied upon for determining the correct taxation treatment and following this Court ruling each case should be reexamined in the light of existing facts.

The Court set out a five step framework for determining the correct status of a worker:-

Decision-making Framework

The decision-making framework consists of five questions as follows:

?

“1. Does the contract involve the exchange of wage or other remuneration for

work?”. This is more commonly known as the ‘Work/Wage bargain’ and is

explained in more detail in Section 3.1.

?

“2. If so, is the agreement one pursuant to which the worker is agreeing to

provide their own services, and not those of a third party, to the employer?”.

This is more commonly known as ‘Personal Service’ and is explained in more

detail in Section 3.2.

?

“3. If so, does the employer exercise sufficient control over the putative

employee to render the agreement one that is capable of being an

employment agreement?”. ‘Control’ is explained in more detail in Section 3.3.

?

“4. If these three requirements are met, the decision maker must then determine

whether the terms of the contract between the employer and worker

interpreted in the light of the admissible factual matrix, and having regard to

the working arrangements between the parties as disclosed by the evidence,

are consistent with a contract of employment, or with some other form of

contract having regard, in particular, to whether the arrangements point to

the putative employee working for themselves or for the putative employer.”.

‘All the circumstances of the employment’ is explained in more detail in

Section 3.4.

?

“5. Finally, it should be determined whether there is anything in the particular

legislative regime under consideration that require the court to adjust or

supplement any of the foregoing.”. ‘The Legislative Context’ is explained in

more detail in Section 3.5.

?

The first three questions are to be viewed as a filter. If any of these are answered

negatively, there cannot be a contract of employment. If the first three questions

are answered affirmatively, questions four and five must then be considered to

determine if a contract of employment exists. The Decision Tree at Section 5

provides a visual representation of how the framework should be applied.

Each question is further expanded in the relevant subsection.

There is also a decision tree to further assist in making a decision.

Revenue’s treatment of services supplied through a Personal Services Company, or a Managed Services Company, which are common structures through which contracting services are supplied, has not changed. Revenue do not look through corporate structures, except in very limited circumstances specifically provided for in the Taxes Consolidation Act. In that regard, for tax purposes, the judgment only relates to individuals and there is no change in the tax position for businesses who engage companies to carry out work on their behalf.

?

Part-time, casual, and seasonal workers There was a perception that when workers were engaged on a part-time or casual basis, including specifically for one-off shifts, they were not employees as there was no continuous employment obligation, however when the framework is applied it is expected that such workers should be treated as employees.

?

The intention of this notice is to alert employers to the requirement to familiarise themselves with the full implications of the Court ruling and to the points laid out in the new guidelines.

Meanwhile the Code of Practice on Determining Employment Status is being updated by Revenue, Dept Social Protection and the WRC following this Court judgement.