Different types of employment
Who is an employee?
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?
Employed or self-employed?
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) do not make the final decision. Instead, the Department of Employment Affairs and Social Protection will make that decision applying standard tests 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, this is called false self-employment. False self-employment is an employment relationship which creates the appearance that a person is self-employed when, in reality, they are a direct employee of a business. If your employment is wrongly classed as self-employment, it affects your employment rights and the social welfare payments you are entitled to. 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.
If you think you might be falsely self-employed, contact the Scope section – see 'Where to apply' below. They will investigate the work relationship you have with the company and make a determination on your employment status. You can get more information on false self-employment and the criteria the Department uses to make a determination on your employment status.
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 the Workplace Relations Commission.
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 dismissals legislation, though they need to have at least one year's continuous service before they can bring a claim under the Unfair Dismissals Acts. 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 (for example, 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 the Workplace Relations Commission.
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.
Children and young people
The law does not allow children (that is, aged under 16) to be employees apart from in very restricted circumstances, for example, to take part in a film.
- Children aged over 14 may do light work outside school term.
- Children aged over 15, but under 16, may also do light work and this may be during school term.
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:
- Obtain a copy of the person's birth certificate
- If a child is being employed, obtain a letter of consent from the child's parent / guardian
- Keep records of the employee's details such as date of birth, and of the hours worked. You can read more detailed information about the protection of young people in employment.
Where to apply
If you think you might be falsely self-employed, contact the Scope section, they will be able to make a determination on your employment status.
Or you can contact your tax office.
If you think you are an employee and you have a complaint about how you are being treated in relation to employment rights or equality matters, contact the Workplace Relations Commission. The Workplace Relations Commission provides information on industrial relations rights and obligations under Irish employment and equality legislation.