Ireland

Maples and Calder (Ireland) LLP, the Maples Group’s law firm, is pleased to announce the addition of Stephen Gardiner who joins the firm as a Partner in its Irish Asset Finance practice. With 15 years’ experience, Stephen is a highly regarded advisor in the aviation leasing and finance sector in Ireland. Stephen’s practice spans corporate structuring and the establishment of aviation-related corporate platforms in Ireland, to advising on aircraft financing, trading, and leasing transactions and on aviation regulatory matters in Ireland. His experience extends to providing Irish legal advice to airlines, lessors, aircraft financiers, owner trustees and corporate service providers located worldwide on transactions involving Ireland. A licenced private pilot with a hugely technical knowledge of aircraft, Stephen will work closely with the Dublin Finance practice led by Stephen McLoughlin and in conjunction with Mary O’Neill to further develop the firm’s Irish Asset Finance practice as well as the Group's wider global Asset Finance team. He will also collaborate with the firm’s other core practice groups which include Funds & Investment Management; Data, Commercial & Technology; Corporate, Dispute Resolution & Insolvency; Tax, Property; Employment; Global Registration Services and Financial Services Regulatory. Over the past year, the Group's Irish and global Asset Finance practice has advised on several noteworthy and award-winning deals, including: SKY Leasing’s US$1.2 billion Fund VI Warehouse financing deal. Griffin Global Asset Management’s US$1 billion bond issuance. Two new financing facilities for Windward Air Capital and its JV partner Bain Capital. BBAM’s Horizon 2024-1 aircraft securitisation transaction. volofin Capital Management’s Inaugural US$538 million Aviation Loan ABS[1] Avolon’s acquisition of Castlelake Aviation[2] SKY Leasing’s US$569.540 million secured notes offering[3] The Group's global Asset Finance team which comprises lawyers and industry professionals strategically based in key jurisdictions and locations including Dublin, London, Singapore, Luxembourg, Dubai, Hong Kong, Delaware, the Cayman Islands and the British Virgin Islands. Peter Stapleton, Ireland Managing Partner, said, "Stephen’s aviation expertise is well-recognised in the sector both in Ireland and internationally and we are delighted to welcome him to our Finance practice in Ireland. He joins our Asset Finance Team at a time of growth including recent internal promotions, recognition and accolades for our team members and awards for client deals." He added, “The Maples Group is unique compared to domestic law firms by combining the services offered by a leading international law firm with a full-scale financial services business. This integrated service model offers our clients a wider range of expertise and with additional resources and our latest innovations in technology, we expect to advise on an even greater number of significant deals in the aviation sector in 2025.” Tina Meigh, Global Head of Finance, stated, "To meet growing client demand for asset finance, banking and structured finance advice, we continue to expand our European Finance practice with key hires in the region. In addition to Stephen’s arrival, we recently welcomed Yann Hilpert to our Luxembourg Finance practice. We are confident that Stephen’s considerable experience will complement our Irish and global finance team in meeting client needs.” Stephen Gardiner added, "Joining an international firm with a presence and on-the-ground experience in multiple jurisdictions made the Maples Group very attractive to me. The Group’s extensive international offering and reputation for excellence were key factors in my decision to join. I am excited to collaborate with my colleagues in Ireland and across our global network to deliver exceptional service to our clients.” Over the last 12 months, the Dublin firm has appointed a number of senior lawyers at Partner, Of Counsel and Associate level, including to its growing Finance team. These appointments follow a period of exceptional growth at the firm and are in direct response to increasing demands for Irish legal services from new and existing international clients. In January, the Maples Group announced a pioneering technology partnership with leading software platform Aerlytix, which will transform aviation ABS management. Harnessing technology, data and advanced modelling, this aviation ABS platform will drive enhanced transparency, efficiency, and tighter controls for clients. From its offices in Dublin, the Maples Group provides a complete, end-to-end suite of fiduciary, legal, management and entity services to the aviation finance industry, as well as tax advisory, regulatory and compliance services. With over 500 colleagues in Dublin, the Maples Group is a leading legal and corporate services provider in Ireland, working with eight of the top ten global aircraft lessors. Footnotes [1] Aviator.aero: volofin Capital Management Closes Inaugural $538MM Aviation Loan ABS – 12 December 2024 2 AviTrader.com: Avolon completes acquisition of Castlelake Aviation – 17 January 2025 3 Airline Economics: SKY Leasing closes of $569.5 million secured notes offering – 30 September 2024

Following the 2023 judgement of the Supreme Court in The Revenue Commissioners v Karshan (midlands) Ltd/ T/A Donimo’s Pizza [2023] IESC 24 the Government’s “Code of Practice on Determining Employment Status”(hereafter “the Code”) has been reviewed and updated by an interdepartmental group comprising of the Department of Social Protection (hereafter the “Department”), the Office of the Revenue Commissioners (hereafter the “Revenue”) and the Workplace Relations Commission (hereafter the “WRC”). The Code is intended to provide a clear understanding of the employment status of individuals, taking into account current labour market practices and developments in legislation and case law. Included below is a high level summary of the Code. A full copy of the Code can be accessed here: https://www.gov.ie/en/publication/23e13-code-of-practice-on-determining-employment-status/ General Summary of the Code: The Code confirms that the Department, Revenue and the WRC each have a remit in determining the employment status of a person and that decisions of these bodies are not binding on each other. The Code confirms the five-step framework for determining employment status as set out by the Supreme Court in Karshan and includes specific guidance on each question some of which is briefly summarised below. Question 1: Does the contract involve the exchange of wage or other remuneration for work? Summary Guidance on Question 1: The Code indicates that provided there is payment by a business to a worker for a service “directly or indirectly” for the provision of the worker’s labour, whether agreed in writing or not, and whether the work is carried out on a once off basis or on a continuous basis or anything in between, there is a contract which is capable of being an employment contract. Question 2: If so, is the agreement one where the worker is agreeing to provide their own services, and not those of a third party, to the business? Summary Guidance on Question 2: The Code confirms that the more restrictions imposed on the freedom for a worker to appoint a substitute, the more indicative the arrangement is that of a contract of employment. Question 3: If so, does the business exercise sufficient control over the worker to render the agreement one that is capable of being an employment agreement? Summary Guidance on Question 3: The Code confirms that the right of the business to exercise control is more relevant than whether they actually exercise this right. The Code also confirms that when considering the issue of “control”, a decision maker may have regard to the issues of “enterprise” and “integration”. “Enterprise” being the extent to which the worker carries risk and their ability to make financial gain through their own ingenuity/efficiency. “Integration” being the extent to which a worker is an integral part of the operations of the business/person engaging their services, as opposed to carrying out work that, although done for the business, is peripheral or accessory to it. If question 1,2 or 3 above are answered negatively it means that there can be no contract of employment. Question 4: If the above three requirements are met, all of the circumstances of the arrangement/agreement/ contract must be considered. In other words, whether the terms of the arrangement/agreement/ contract between the business and the worker, interpreted in the light of the practical/real conditions of engagement (the “factual matrix”) are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the worker working for themselves or for the business/employer. Summary Guidance on Question 4: The Code confirms that while a detailed written agreement may carry significant weight, efforts to describe a relationship in a particular way which differs from the day-to-day reality, in order to circumvent or frustrate the operation of statutory provisions, will be challenged. On this point the Code concludes that the question to be considered is whether the facts indicate that the worker is providing services on his or her own account, or whether the facts indicate that the worker is providing the services on behalf of the business. Question 5: Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires a particular approach to be taken, e.g., a person might be an employee for social insurance purposes but self-employed for employment law or tax purposes. Summary Guidance on Question 5: On this point the Code emphasises that in the context of the WRC determining employment status under the relevant employment legislation, the definitions of ‘contract of employment, ‘employee’ and ‘employer’ differ from one employment enactment to another. Therefore, each case lodged with the WRC for Adjudication is different and is decided on its own facts by an independent Adjudication Officer. Pages 13-14 of the Code set out some typical characteristics of an employee as well as important caveats to same. Pages 15-16 of the Code set out some typical characteristics of self-employment and again sets out important caveats to same. The Code references the term “False/ Bogus self-employment” and confirms it is a term used to describe when a worker, who is in fact engaged under an employee contract of service, is knowingly recorded and reported to Revenue and the Department as if they were operating under a self-employed contract for services. The Code confirms this is a criminal offence subject to significant sanctions under the Social Welfare Acts. The Code also goes into detail on employment status classifications in respect of people who own or control companies, agency workers, intermediary arrangements and workers in the digital/gig economy. Of particular note is the guidance contained at page 17-19 in respect of “intermediary arrangements”. Third Party Intermediary Companies: The Code reflects that there are two main forms of intermediary structures used in lieu of a direct engagement between a worker providing services and the end-user of those services namely “Personal Service Companies” (hereafter “PSC’s”) and “Managed Service Companies (hereafter “MSC’s”). The Code reflects that under a PSC arrangement a contract for services is agreed between the end-user and an intermediary company owned/directed by the worker. A PSC is generally a limited company that typically has a sole director who is the worker/contractor who owns most or all of the shares in the company. A variation of the PSC arrangement above involves the use of what have become known as MSC’s. In essence, this involves setting up a company, which is generally structured with a number of worker shareholders who may or may not be involved in delivering similar services to the same end-user. MSC’s are typically facilitated by a third-party agent who organises the legal and administrative affairs of the Company. Th Code confirms that notwithstanding the use of such intermediary structures, the employment relationship will still be subject to the same five questions provided for by the Karshan ruling (outlined above) when determining whether the worker is self-employed or an employee. The Code confirms that in looking at all the facts and circumstances of the case, it is possible that a decision-maker or Adjudicator may determine that the end-user, is the employer for PRSI purposes. Each case is determined on its own facts. Notwithstanding the above, the Code confirms that for taxation purposes, Revenue cannot, except for limited circumstances provided for in tax legislation, “look through” corporate structures. Interestingly, the Code’s commentary on intermediary structures coincides with a timely WRC decision in which an individual worker was deemed an employee despite being paid through a third party company of which she was the sole shareholder and director - PR Company v Hotel Resort (ADJ-00046181, ADJ-00047024, ADJ-00045524, ADJ-00047375). We have written a separate article on that case which is available at this link.  However, the facts of that case were very unusual, and it will remain to be seen if a similar determination would be made in a case involving different facts. Takeaway from Employers: Employers should familiarise themselves with the Code and ensure that adequate analysis is undertaken of engagements with contractors so as to reduce the chances of costly consequences arising later from a mis-categorisation of the relationship. Employers should also be mindful that contractor arrangements are something that should be kept under review as a relationship that starts out as a genuine contractor arrangement can be deemed to have become an employment relationship over time. In addition to familiarising themselves with this newly updated Code, it would be advisable for employers to familiarise themselves with the detailed guidelines that previously issued from Revenue on this subject. Those guidelines are discussed in our previous article from June of this year available here: https://aocsolicitors.ie/new-revenue-guidelines-for-determining-employment-status/ Link: https://www.gov.ie/en/publication/23e13-code-of-practice-on-determining-employment-status   Author – Laura Killelea 11th December 2024

The High Court judgement of Ms Justice Bolger in Padraic Hanley v. PBR Restaurants Ltd t/a Fish Shack Café [2024] IEHC 662 delivered on 19th November 2024 gives clarification to the scope of a de novo hearing before the Labour Court.It may also permit Complainants to change strategy between the WRC hearing and the Labour Court hearing. Facts: This case was an appeal of the Labour Court decision to the High Court on a point of law. The Appellant had lodged a number of claims including an unfair dismissal claim under section 8 of the Unfair Dismissals Act to the Workplace Relations Commission (“WRC”) on 21st October 2020. The narrative in the WRC Complaint Form stated that there was a breakdown in his relationship with management which he claimed led to a sham redundancy. The Adjudicator found that the Appellant was self-employed from August 2008 to December 2019 and therefore he did not have the one year’s requisite service to take a claim under the Unfair Dismissals Act. She relied mainly on the ‘mutuality of obligation’ test but did make reference to the enterprise test, contract, control, pay, tax and social insurance. The Appellant appealed to the Labour Court. He lodged written submissions in advance of the hearing, most of which focused on his employment status from 2008 to December 2019. On the first of three days of hearing before the Labour Court on 23rd June 2022, the Appellant’s representative claimed for the first time that the Appellant was dismissed wholly or partly for having made protected disclosures. This would obviate the need for the Appellant to have one year’s service to claim unfair dismissal. The Appellant’s representative contended that this was part of the factual submissions made in the WRC claim form in relation to the deterioration of the relationship with management leading to his purported redundancy. The Labour Court invited submissions on whether it had jurisdiction to consider the argument. The Appellant argued that the Labour Court should not deal with the matter as a preliminary point and should hear the evidence in respect of whether or not his dismissal was wholly or mainly on the making of a protected disclosure. The Respondent argued that this was a new head of claim and that the Labour Court did not have jurisdiction to hear it. The Labour Court deemed that it had two preliminary issues to determine, the first in respect of whether it has the jurisdiction to consider the arguments relating to a protected disclosure and, if not, whether the Appellant had the required one year’s service to claim under the Unfair Dismissals Act. The Labour Court referred to its own decision in Dawn Country Meats Ltd v. Hill which related to the Organisation of Working Time Act.  The Labour Court concluded that its jurisdiction under section 44 of the WRC Act is solely that of an appellate body from decisions of the WRC Adjudicators and it has no jurisdiction to act as a court of first instance. It held that it did not have jurisdiction to enlarge the scope of the appeal to allow arguments that were not made at first instance. The Labour Court then considered the employment status of the Appellant from 2008 to December 2019. It relied on the High Court decision in Minister for Agriculture and Food v. Barry and Others and in particular the mutuality of obligation test. It held that the Appellant was not an employee from 2008 to December 2019 and therefore did not have the one year’s service. The Labour Court’s decision issued on 23rd June 2023. The Appellant’s grounds of appeal to the High Court were: The Labour Court was required to hear the evidence on protected disclosures and not decide on the preliminary issue of his employment status alone. The Labour Court erred in law in determining the Appellant was not an employee before December 2019 and in applying a mutuality of obligation test to his situation. Decision: Ms Justice Bolger addressed both grounds of appeal in her judgement. In relation to the Labour Court’s jurisdiction to determine a preliminary issue, Ms Justice Bolger referred to the Supreme Court decision in Fitzgibbon v. The Law Society of Ireland and quotes parts of the judgement in which Clarke J. (as he was then) set out what was involved in a de novo hearing and goes on to state – “In summary, therefore, it seems to me that the use of the term ‘de novo appeal’ or similar terminology, carries with it a requirement that the  appellate  body  exercise  its  own  judgment  on  the  issues  before  it  without any regard to the decision made by the first instance body against whom the appeal lies.” The Supreme Court decision was after the Labour Court’s decision in Dawn Meats. Ms Justice Bolger referred to the statutory jurisdiction of the Labour Court in dealing with an appeal of an unfair dismissal decision in s.44(1)(a)(i) of the WRC Act which requires the Labour Court to “give the parties to an appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal”. Ms Justice Bolger held that the Labour Court erred in law by refusing to hear the Appellant’s evidence and arguments on what he said was his protected disclosure and the reason for his dismissal and such approach was inconsistent with s.44. Ms Justice Bolger addressed each of the elements referred to in the Labour Court decision and found them not to be in line with s.44 and the nature of a de novo appeal as per the Supreme Court decision in Fitzgibbon. She referred to s.47(1) of WRC Act where a party who did not participate in the WRC hearing could, after paying a fine, appeal the case to the Labour Court and have their case heard for the first time before the Labour Court, which is contrary to what the Labour Court decision referred to. In particular, Ms Justice Bolger pointed out that the claim that was raised by the Appellant in the Labour Court was not a new claim but was one of the 20 situations referred to under s.6(2) of the Unfair Dismissals Act and therefore still a claim under s.8 of the Unfair Dismissals Act as was heard in the WRC. The fact that it was a different argument under s.6 then that argued before the WRC Adjudicator does not make it anything other than an unfair dismissal claim and referred to the fact that all dismissals are deemed unfair unless proved otherwise by the employer. The Respondent argued that the potential higher award that may be granted in respect of a dismissal that is wholly or mainly due to a protected disclosure creates a “new jurisdiction” that was not available to the WRC Adjudicator and therefore the Labour Court should not be allowed to hear the protected disclosure argument. Ms Justice Bolger held that the Respondent confused the monetary jurisdiction of the Labour Court under s.7 with its jurisdiction to hear an appeal pursuant to s.44(1) of the WRC Act. She held that the availability of a higher award does not render the underlying claim anything other than a s.8 Unfair Dismissal Act claim. In relation to the employment status, Ms Justice Bolger applied the Supreme Court decision in The Revenue Commissioners v. Karshan (Midlands) Trading as Dominos Pizza, regardless of the decision having been made after the Labour Court decision that was subject to the appeal. She found that the Labour Court had erred in law by relying on the mutuality of obligation test. Ms Justice Bolger set aside the decision of the Labour Court and sent it back to the Labour Court for a rehearing of the appeal from the WRC. Takeaway for Employers: This High Court decision clarifies the scope of a de novo appeal to the Labour Court and how an employee may change the arguments that he/she wishes to rely upon. However, the claim itself must remain under the same section of the legislation as per the claim before the WRC. As a Respondent has the right to know the case that it has to meet, if such a change occurs in a Labour Court hearing without prior notice, then the Labour Court should give the Respondent time to consider this new argument and possibly put in further written submissions if it so wishes. It should also be noted that sworn evidence from the WRC may still be referred to in the Labour Court and a complete change in argument may result in difficulties for the Complainant in relation to the sworn evidence previously given by him/her. Link https://www.courts.ie/viewer/pdf/c19c0284-260c-41df-9d29-ffda80cac0b6/2024_IEHC_662.pdf/pdf#view=fitH Authors – Anne O’Connell

Raquel Vieira Dos Santos Silva v Eteam Workforce Limited (ADJ-00051855) is a decision of the Workplace Relations Commission (“WRC”) in a case under the Employment Equality Acts 1998-2015 (the “Acts”). It concerned an employee who alleged she was dismissed from her employment because she was pregnant. Facts: The Complainant was employed by the Respondent as a Category Sourcing Consultant from 12th December 2022 until 29th February 2024. She was issued with a contract of employment in November 2022, which did not contain an end date. In July 2023 the Complainant informed the Respondent that she was pregnant, following which emails were exchanged regarding her due date and estimated start of her maternity leave. The Complainant was presented with a contract addendum ten days later, purporting to extend her contract from the end of December 2023 until the end of February 2024, the month she was due to commence maternity leave. The Complainant initially refused to sign this addendum as it was the Complainant’s position that she was employed on a full-time permanent basis since her start date, and she told the WRC that there was never any mention of her role being fixed-term in nature. The Complainant submitted to the WRC that she eventually signed this addendum under duress, as she was told that she would receive no income for January and February 2024 if she did not sign it. The Complainant’s employment was terminated on 29th February 2024 while she was on maternity leave. The Respondent’s position was that it was an error that the Complainant’s original contract had no end date. Their legal representative submitted that the Respondent’s contract with their client was being terminated at the same time as the Complainant being due to go on maternity leave, and that they had been actively trying to seek alternative roles for her. Decision: The Adjudicator, Gaye Cunningham, considered whether the Respondent discriminated against the Complainant on the grounds of her gender and whether she was discriminatorily dismissed because of her pregnancy. Under the Acts an employer shall not discriminate against an employee on any of the nine discriminatory grounds. Section 6 (2A) states that: “discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.” In any employment equality case before the WRC, the initial burden of proof is on the Complainant to establish facts from which discrimination may be presumed, before the burden shifts to the Respondent to prove the contrary. The Adjudicator was satisfied that a prima facie case of discrimination had been made out by the Complainant where she had been presented with a contract addendum bringing her contract to an end merely ten days after informing the Respondent of her pregnancy. The Adjudicator seemed critical that no written submissions and, in particular, no documentary evidence, had been provided by the Respondent who relied only on oral evidence at the hearing. For example, no documents were provided showing that the Respondent’s contract with the client was being terminated at the same time that the Complainant was due to go on maternity leave, or showing that they were regularly seeking alternative roles for the Complainant. The Adjudicator accepted the Complainant’s evidence that she was put under pressure to sign the contract addendum and commented that to unilaterally change an employee’s terms and conditions of employment is a serious matter, which is “particularly egregious” where the Complainant had notified the Respondent of her pregnancy. The Adjudicator ultimately found that the Respondent discriminated against the Complainant on the ground of gender and that the Respondent discriminatorily dismissed her on the grounds of gender and related to her pregnancy. In deciding upon redress, the Adjudicator specifically referred to the European Court of Justice case Von Colson & Kamann v Land Nordrhein- Westfalen [1984] ECR 1891, which is authority for the well-established position that the sanction for discrimination should be “effective, dissuasive and proportionate”. It should be noted that this case was referred to by the Complainant in her submissions, along with the WRC case of Dr Jacqueline Elliott v Flexiteam Ltd (ADJ-00045346), where the Adjudicator stated that “the embarrassing and distressful situation the Complainant was put in” should be taken into account when deciding upon the quantum of award. The Respondent was ordered to pay €124,800 for the effects of the discrimination and the distress caused to the Complainant. The Respondent was also ordered to pay €11,400 in respect of her loss of earnings between July and September 2024. Takeaway for Employers: Employers should be aware that pregnant women have strong protection from discrimination in Ireland. This protection is rooted not only in the Acts, but also in the Maternity Protection Acts, EU law and the Irish Constitution. Employers should be wary of taking any steps to terminate a pregnant employee’s employment, or to terminate an employee’s employment while they are on maternity leave, as this is a form of protected leave. Employers should also take note of the high quantum of the award in this case. As noted by the Adjudicator when referring to EU law, awards for discrimination are meant to be dissuasive. In unfair dismissal cases, awards of compensation are based on a complainant’s loss of earnings and complainants are obliged to mitigate their loss and actively seek new employment. However, in employment equality cases, awards of compensation are frequently made for the effects of the discrimination, increasing the potential exposure. Link – https://www.workplacerelations.ie/en/cases/2024/adj-00051855.html Authors – Tara Kelly and Jenny Wakely