February 04, 2021
Author Note: This article was contributed by HR Policy Global's friend Eimer Boyle, Senior Associate
with Matheson in Ireland.
The traditional question of whether a person is an employee or an independent contractor in Ireland, like in many jurisdictions, has been re-ignited by the rise of the so-called gig economy. In the first major judgment in this jurisdiction on the gig economy, the Irish High Court held delivery drivers for a major pizza chain were employees and not self-employed contractors.
Before delving into the details and ramifications of the Irish High Court’s decision, it is important to understand that the law in Ireland does not recognise the UK concept of “worker” that has been key to the gig economy debate in the UK (more on the UK below). In making the decision that the delivery drivers for the pizza company were employee, the high court made some key observations, including:
Deliveroo in Ireland has called on the Government to amend legislation to allow them to adapt its model and apply certain benefits for individuals without making them employees, in light of recent scrutiny following the death of a Deliveroo cyclist. The tragedy highlighted the poor regulation and the lack of rights that those working in the gig economy currently have in Ireland.
Although not on the Government’s current legislative agenda, Irish case law is certainly one to watch and each employer operating in the gig economy must continue to ensure that their model is appropriately structured.
The Gig Economy in the United Kingdom: In the UK’s Employment Appeals Tribunal’s (“UK EAT”) decision Uber BV v Aslam and Others, the UK EAT held that Uber drivers were in fact “workers” – defined as self-employed, but provides services as part of someone else’s business – as opposed to self-employed contractors, which would entitle them to certain protections under UK employment law statutes, such as statutory annual leave, working time rights and national minimum wage. An influential factor in the UK EAT’s finding was the level of control that Uber had over its drivers. It found that the relationship, in reality, was very different to that reflected in the Uber drivers’ contracts.
Uber’s Chief Executive has previously argued for what he calls a “third way”, where drivers keep the flexibility of the self-employed model, while still receiving some benefits like holiday pay or sick leave.
Updates from the EU: Gig economy companies in Europe are under pressure to protect workers’ rights. The chief executive of food delivery platform Just Eat has vowed to stop using gig workers in Europe, saying he wants to employ people who get benefits and have workplace security.
In Switzerland, it was ruled that Uber drivers were employees, and not independent contractors. Uber Eats was also ordered to stop using independent contractors in the Geneva area.
In 2018 in Denmark, an online platform for cleaning in private homes, Hilfr, formed a gig economy collective agreement with the largest Danish trade union. Hilfr co-founder Steffen Wegner Mortensen was quoted as saying that the agreement is “raising the bar for the gig economy and showing how we can all benefit from new technology without undermining labour rights and working conditions”.