Food demonstrator sets legal precedent in employment law
Ms Mahon was employed by Henry Denny & Sons of the sausage fame, which was wholly owned by Kerry Foods in the early 1990s when she decided to find out whether or not she was an employee.
Her job was to provide demonstrations of Denny products in supermarkets. She was one of 70 people employed on that basis.
She had an employment contract with the company which stated: “You will not be an employee of Kerry Foods, you will be providing it with your services as an independent contractor, as and when they are required, during the term of the contract.”
That contract included payment of £28.32 a day for her services, plus travel expenses of 27p a mile from her base in Tralee, Co Kerry.
Denny provided all her equipment, food, and uniform, and if she arrived at a supermarket to find that her scheduled demonstration had been cancelled, she had to be available to work elsewhere. If there were no other demonstrations which she could attend that particular day, she only got paid for her mileage.
The contract also stipulated that she had to be available for work at 24-hour notice.
As far as Ms Mahon was concerned, she had been landed with all the negative aspects of self-employment and none of the positive features. She was working exclusively for Denny and was not in a position to increase her remuneration through working harder or more efficiently.
She brought a case to the Department of Social Welfare (as it then was) claiming that she should be granted proper employee status. The deciding officer at the department agreed with her.
Denny the appealed the ruling to the High Court, where the deciding officer’s decision was confirmed, and again to the Supreme Court, where the same result was returned.
In his ruling, Judge Ronan Keane said that all circumstances of a contract had to be taken into account to determine whether somebody was an employee or genuine contractor.
Among these were that each case should be decided with regard to the particular facts of that case. Another is that whether an individual is performing services for another person or for him or herself.
He also listed some indicators that would point towards independent contractor status, including the provision of one’s own premises or equipment, employing others to assist in the contract, and whether profit could be dependant on efficiency in doing the work.
In light of all that, the judges ruled that in the case of Sandra Mahon versus Denny, the deciding officer at the Department of Social Welfare was perfectly entitled to rule that she was an employee.
A more recent case involving veterinary inspectors went the opposite way.
Five temporary veterinary inspectors were found by the Employment Appeals Tribunal to have been employees of the Department of Agriculture in their work which involved inspections at the Galtee meat plant in Mitchelstown, Co Cork.
The men sought redundancy payments when Galtee closed, but the department claimed their contracts did not render them employees.
In 2009, the High Court allowed an appeal by the department against the employment tribunal ruling. Judge John Edwards stated that the inspectors had not met the tests required to be classified as employees.
Another recent case involves a completely different line of work, that of lapdancing. A dispute over whether lapdancers working in Stringfellows nightclub in London were employees or self-employed went all the way to the UK Court of Appeal.
The dispute arose with Revenue in assessing how the dancers should be taxed. The contracts the dancers had stated that they were independent contractors responsible for their own taxes.
In the end, the appeal court ruled that “it is legitimate for a court to have regard to the way in which the parties have chosen to categorise the relationship, and in a case where the position is uncertain, it can be decisive.”
While the ruling has no effect in this jurisdiction, precedents set in the UK are often used by judges in formulating rulings.
