Cutting Mutuality of Obligation Down to Size: Revenue Commissioners v Karshan (Midlands) Ltd T/A Domino's Pizza [2023] IESC 24

• Date: 01 January 2024

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Cutting Mutuality of Obligation Down to Size:

Revenue Commissioners v Karshan (Midlands) Ltd

T/A Domino’s Pizza

[2023] IESC 24

JACK HERON*

Introduction

On 20 October 2023, the Supreme Court delivered its long-awaited decision

in Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza,1 in a

mammoth 192-page judgment written by Murray J. In allowing the Revenue

Commissioners’ appeal of the Court of Appeal’s judgment, the Supreme Court

discusses at length the development of the various legal tests and principles for

establishing the existence of a contract of service and distinguishing it from a

contract for services. Murray J traces the development of the notorious ‘mutuality

of obligation’ criterion in the English and Irish case law and attempts to clarify the

law in this area.

e result of this analysis of Karshan’s tax liability for its delivery drivers is

curious. On the face of things, the employer has ‘lost’, but the employees have

not meaningfully ‘won’ anything; the only real winner appears to be the Revenue

Commissioners, with perhaps some crumbs for future gig economy workers

depending on how this case is viewed in future. is case note will rst explain the

concept of mutuality of obligation and its signicance, as well as explain the facts of

Revenue Commissioners v Karshan. It will then trace the journey of this case to the

Supreme Court through the superior courts before examining Murray J’s analysis in

the Supreme Court and its potential future impacts.

Mutuality of Obligation and the Gig Economy

To understand Revenue Commissioners v Karshan, one must rst understand the

concept of ‘mutuality of obligation’ in a contract of employment and why this is

signicant for employment protection.

* BCL (NUI), BCL (Oxon), Solicitor. e analysis in this note has benetted from my participation

in an Oxford seminar on the gig economy and I am grateful to Professor Anne Davies, Dr Alan

Eustace, and my fellow students for helping to shape my thinking on this topic. Any errors that

remain are my own.

1[2023] IESC 24 (‘Karshan SC’).

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