The National Museum of Ireland v Minister for Social Protection

• Jurisdiction: Ireland
• Judge: Ms. Justice Murphy
• Judgment Date: 07 March 2016
• Neutral Citation: [2016] IEHC 135
• Docket Number: [2014 No. 191SP]
• Court: High Court
• Date: 07 March 2016

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 327 OF THE SOCIAL WELFARE CONSOLIDATION ACT 2005

BETWEEN

THE NATIONAL MUSEUM OF IRELAND

Applicant

AND

THE MINISTER FOR SOCIAL PROTECTION

Respondent

AND

LORNA BARNES

Notice Party

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 327 OF THE SOCIAL WELFARE CONSOLIDATION ACT 2005

BETWEEN

THE NATIONAL MUSEUM OF IRELAND

Applicant

AND

THE MINISTER FOR SOCIAL PROTECTION

Respondent

AND

LORNA BARNES

Notice Party

[2016] IEHC 135

[2014 No. 191SP]

[2014 No. 191SP]

THE HIGH COURT

THE HIGH COURT

Employment – S. 327 of the Social Welfare Consolidation Act 2005 – Audi alterem partem – Doctrine of estoppel – Fair procedures

Facts: The applicant had filed an appeal against the determination of the social welfare appeals officer that the notice party was in insurable employment with the applicant under Social Welfare Acts for the relevant period. The applicant contended that since the employment status of the notice party had already been determined by the Rights Commissioner, the respondent was bound by the said decision and that the decision of the social welfare appeals officer was in contravention of principle of audi alterem partem as the applicant was not given the opportunity to address of the contents of the relevant material upon which the decision was largely based.

Ms. Justice Murphy granted the desired reliefs to the applicant and remitted the matter to the social welfare appeals officer for re-consideration in the light of the findings made in the present judgment. The Court held it should adopt a multifaceted approach while determining the legal status of a worker in employment cases including mutuality of obligation, degree of control and those facts findings remain the sole discretion of the Appeals Officer. The Court held that it had jurisdiction to entertain an appeal from the decision of administrative bodies on point of law only. The Court observed that the doctrine of estoppel did not arise in the present case as both the Right Commissioner and the Appeals Officer had different jurisdictions and they dealt with different employer-employee issues. The Court, however, found that the Appeals Officer by not affording the opportunity to the applicant to address the contents of the e-mail, which had been referred thrice in its decision, had contravened the principle of audi alterem partem. The Court found that the decision-maker had failed to give reasons as to why it had opted to give preference to certain piece of evidence as opposed to other and thus, violated the principle of fair procedures.

Judgment of Ms. Justice Murphy delivered the 7th day of March, 2016.

1 The applicant in these proceedings, the National Museum of Ireland, challenges a determination by a social welfare appeals officer made sometime prior to 28th April, 2014 being the date when the decision was notified to the applicant. The determination, made pursuant to s. 327 of the Social Welfare Consolidation Act 2005, is that the notice party Ms. Lorna Barnes was in insurable employment with the applicant under the Social Welfare Acts at Class A from 1st January, 2004 to 31st July, 2011. The applicant challenges the determination on three grounds. The first ground is that the employment status of the notice party had earlier been determined by a decision of the Rights Commissioner Service on 28th September, 2012 and that the respondent is bound by such a decision. Alternatively, the applicant challenges the determination on the basis that the social welfare appeals officer (and/or deciding officer) erred in law and in a mixed question of law and fact in reaching its determination. Thirdly, they seek a declaration that the proceedings before the social welfare appeals officer were conducted other than in accordance with the requirements of fair procedures in that material which was not adverted to or dealt with in the course of the hearing formed a material ground of the determination and thus offended the principle of audi alterem partem.

Background

2 The notice party in this case is a specialist glass, ceramic, enamel and stone conservator. This is a niche field in which she has provided services of between 2 and 2.5 days per week to the applicant since 2004. The notice party commenced work with the applicant in 2000 when she was employed as a temporary technical assistant with a rate of pay of £261.35 per week. She left this position in April 2001. From April 2002 the notice party carried out eight days of work per month for the applicant pursuant to an informal arrangement.

3 From 1st January, 2004 to June 2011 the notice party was employed pursuant to various contracts for services which were expressed to be ‘ a contract for service and not a contract for employment’. The rate of pay for these contracts was considerably higher than that which she had earned as an employee and increased over the years from €170 to €220 per day. The notice party had a number of such contracts between 2004 and 2011. On three occasions in 2004 and 2005 the notice party's trade union was notified of, and approved, the respective contracts between the applicant and the notice party. Pursuant to the contracts, the notice party invoiced the applicant monthly for her work; was taxed on a self-employed basis and was required to submit a tax clearance certificate. She was also required to have public liability insurance as a condition of her contract. She was not required to record her hours and was not subject to the applicant's flexi-time policy or Personal Management Development Initiative as employees were. She was permitted to send a substitute provider subject to the approval of the applicant and was not required to submit sick certificates when absent. During the currency of these contracts, the notice party was a member of the conservation panels of the Heritage Council, the Hunt Museum and the Office of Public Works and she held herself out as being available to carry out other conservation works on a consultancy basis. She was also a member of the Institute of Conservator Restorers in Ireland and was listed on their membership page as being ‘ in private practice’ and ‘ available for consultation’.

4 In 2011, the applicant embarked on an overhaul of its procurement procedures across a range of service areas, including conservation services. It implemented a Single Operator Framework Agreement in respect of those services. Tenders were invited on the etenders.gov.ie website and, in certain cases, in the Official Journal of the European Union. The notice party states in her affidavit that she was advised in April 2011 that if she did not tender for her position she would not be allowed to continue working with the applicant and as a result, was obliged to enter the tender process. Mr. Anthony Read, Head of Conservation at the National Museum, in his affidavit, notes that the notice party does not specify who advised her and states that he did not do so. He acknowledges however that it was implicitly clear that it was necessary for her to tender and participate in the Single Operator Framework Agreement process in order for her to be awarded a contract as a conservator. In a tender submitted on 26th May, 2011, the notice party tendered for conservation services in respect of ceramics, glass, stone and plaster. At paragraph 2.2.1 of that document the notice party described herself as a ‘ part-time, sole trader’ and stated, at Appendix F, under the heading ‘Professional Experience’:

‘I am currently a freelance inorganic objects conservator working in Dublin. I am a consultant contract conservator working for the National Museum of Ireland two and a half days a week.’

From August 2011 to July 2013 the notice party carried out work for the applicant on the basis of a contract awarded pursuant to this tender process.

5 On 16th February, 2012, in the course of the contract, the notice party along with some of her colleagues in the National Museum and with the assistance of the trade union IMPACT, brought a claim under the Organisation of Working Time Act 1997, that they were individuals to whom s. 19 and s. 21 of the 1997 Act applied and that, as such, they were entitled to payments from the National Museum for annual leave and public holidays. Their claim in this respect related to the annual leave year in currency at that time i.e. 1st April, 2011 to 31st March, 2012. However in order to invoke the provisions of the 1997 Act, the notice party and her colleagues had to satisfy the Rights Commissioner that they were employees of the National Museum to whom the relevant provisions of that Act applied. A preliminary issue in relation to the employment status of the claimants arose. The notice party's claim was that, notwithstanding her continuous engagement by the applicant since 1st January, 2004 pursuant to contracts for services, she had in fact functioned as an employee and that, from 2006, the HR Manager had insisted that her hourly rate correspond to the Assistant Keeper 2 (curatorial) payscale.

6 The claims of the notice party and her colleagues on the issue of status were heard by a Rights Commissioner of the Labour Relations Commission on 11th April, 2012. In summary, they submitted that there was a mutuality of obligation within the meaning of the decision in Minister for Agriculture v. Barry [2008] 19 ELR 245, and that applying the “mixed test” set out in Henry Denny & Sons (Ireland) Ltd. v. Minister for Social Welfare [1998] 1 IR 34 their contractual relationships had all the hallmarks of a contract of service as opposed to a contract for services. They also relied on the Department of Social Protection's Code of Practice for determining Employment or Self-Employment Status for Individuals and submitted that they complied with each of the criteria for employees contained in that Code. The notice party's specific points...