The High Court has sent back for reconsideration a decision that Brightwater Selection (Ireland) Limited employed temporary accountant Ms Kerrie-Anne Keenan under a contract of service in 2002.
Mr Justice Paul Gilligan ruled on the company’s appeal on a point of law against a Social Welfare Appeals Officer decision. That decision had upheld a Deciding Officer’s finding that Ms Keenan was employed by Brightwater from 14 March to 30 September 2002 and that her employment was insurable for benefits and pensions at PRSI Class A. The Chief Appeals Officer had declined to revise the decision.
Ms Keenan registered with Brightwater in 2001. Brightwater arranged an interview for an administration position at University College Dublin, where she was offered a temporary financial accountant role. She worked there for 31 weeks. UCD directed her day-to-day work. Brightwater received her weekly timesheets and paid her salary, deducting PAYE and employee and employer social insurance contributions.
The judgment records that there did not appear to be an obligation on Brightwater to provide Ms Keenan with work, or on her to work for the agency. The case was selected by agreement between Brightwater and the Minister for Social and Family Affairs as a test case on agency workers’ insurability and the related refund issue.
The Appeals Officer had found that UCD exercised day-to-day control, but that Brightwater exercised greater overall control through the terms of engagement and requirements such as reporting hours, pay, grievances and sickness. The High Court held that the officer had not properly considered whether Brightwater had the right to direct how Ms Keenan performed her work. That question mattered to the control analysis.
The judge also found that the Appeals Officer had failed to consider whether the arrangement could be a contract sui generis—one of a kind—rather than a contract of service or a contract for services. The officer had mentioned mutuality of obligation but had not substantively assessed whether Brightwater had to provide work and Ms Keenan had to perform it. The court held that mutuality was a relevant consideration and that the failure to address it was an error of law.
The court accepted as sustainable the Appeals Officer’s factual distinction between Ms Keenan’s temporary accountant role and the specialist aircraft maintenance work in an earlier agency-worker case. It did not decide the effect of another cited case because that was unnecessary to resolve this appeal.
The High Court did not determine whether Ms Keenan was employed under a contract of service. It remitted the matter to the Appeals Officer for reconsideration in light of its findings.