While in most cases it will be perfectly clear who is an employee, sometimes it is not quite so clear. For example, a business anxious to avoid employment legislation, tax and social insurance may insist that all people working for the firm are self-employed rather than employees. In other words, the person you are doing work for insists that you are not his/her employee but instead you are a self-employed person asked to do a particular piece of work. You however, consider yourself to be an employee. In this case - who is right?
Deciding whether you are employed or self-employed has a number of implications for you. The majority of employment protection legislation applies to employees only and the tax and social insurance system will treat you very differently depending on whether you are employed or self-employed.
There is no definition of ‘employed’ or ‘self-employed’ in employment law. The decision on your employment status is reached by looking at what you do, how you do it and the terms and conditions under you were engaged. The important point is that you (or the person you do work for) don't make the final decision. Instead, the Revenue Commissioners or the Department of Social Protection or perhaps a court or tribunal will make that decision applying standard tests and based on the real nature of your working relationship. Examples of such tests are: whether you control the work, who supplies the materials and whether you get holiday pay.
So it could be that in law you are considered an employee, even though you have agreed with another person that you will work for him or her as a self-employed person. The Code of Practice for Determining Employment or Self-employment Status of Individuals (pdf) contains criteria which can be used to clarify whether a person is employed or self-employed.
In most cases, it is clear whether a person is an employee or not. However if this is a problem for you, then it is best to get more detailed legal advice or guidance from your local tax office or the Scope Section of the Department of Social Protection - see 'Where to apply' below.
Part-time employees are in a similar position to full-time employees when it comes to employment protection legislation, although in some instances a part-time employee will need to work a set minimum number of hours for a set period of time before acquiring rights. You can read more about the protection of part-time employees in this explanatory booklet (pdf) from Workplace Relations Customer Services. (This booklet explains the terms of the Protection of Employees (Part-time) Act 2001).
Many more people are now employed on a fixed-term basis (or on specific purpose contracts). Employees working on repeated fixed-term contracts are covered under the Unfair Dismisals legislation, through they need to have at least one year's continuous service before they can bring a claim under the Unfair Dismissals Act. Under the Protection of Employees (Fixed Term Work) Act 2003, employers cannot continually renew fixed term contracts. Employees can only work on one or more fixed term contracts for a continuous period of four years. After this the employee is considered to have a contract of indefinite duration (e.g. a permanent contract). Under the Act fixed-term workers cannot be treated less favourably than comparable permanent workers. You can read more about the Protection of Employees (Fixed Term Work) 2003 Act in this explanatory booklet (pdf) from Workplace Relations Customer Services.
Specified purpose contracts are contracts that are entered into in order to complete a special project or for a special purpose. The provisons under the unfair dismissals and protection of workers legislation apply equally to specified purpose contracts.
There is no definition of 'casual employees' in employment law. In reality, casual workers are on standby to do work as required without fixed hours or attendance arrangements. However, these workers are employees, for employment rights purposes.
Some legislation will apply, for example, the right to receive a pay slip. In other instances where a set period of employment is required it will be unlikely that a casual employee will have sufficient service to qualify, for example, 2 years' service is required in order to be entitled to statutory redundancy.
The law does not allow children (that is, those aged under 16) to be employees apart from in very restricted circumstances, for example, to take part in a film.
In any of the above circumstances there are restrictions on the number of hours that may be worked and when the work may be done, with a complete prohibition on work between 8pm and 8am.
Young people (those between 16-18 years of age) may become employees but there are restrictions on the maximum hours that can be worked and generally the work cannot be between 10pm and 6am.
An employer of a child or young person must:
Contact your local tax office or
Department of Social Protection
212-213 Pearse Street
Tel:(01) 673 2585
If you have a question relating to this topic you can contact the Citizens Information Phone Service on 0761 07 4000 (Monday to Friday, 9am to 8pm) or you can visit your local Citizens Information Centre.