In the case of The Minister for Education and Skills and Jacqueline Walsh DWT1716, the Labour Court had to deal with an issue as to who the correct employer was in relation to claims under various pieces of legislation. This office was involved, acting for the employee.

The issue as to who the correct employer is for various claims has been the subject of a lot of discussion since the decision of the Court of Appeal in Minister for Education and Skills -v- Anne Boyle IECA 39.

The Labour Court in this case had to deal with extensive submissions by both sides which involved the school, the Department and the employee as to whom the correct employer was.

The Labour Court has confirmed that in claims under the Payment of Wages Act, the Department, as they pay teachers, is the correct employer for that Act. But that for a claim under the Organisation of Working Time Act, the employer would be the school.

This case is very important in clarifying the law. It will mean going forward that a person who is for example a teacher who has claims for non payment of wages, for example, may have a claim under the Organisation of Working Time Act, such as an equality claim especially one where the equality claim may also have, for example, an equal pay claim. There is going to be multiple respondents having to be brought into the proceedings. In a case such as that which is given in this example you would have a situation where for a claim for equal pay under the Equality legislation or for an outstanding Payment of Wages claim. Such claims will go against the relevant department being the Department of Education and Skills whereas claims for discrimination not involving a pay element and a claim for example under the Organisation of Working Time Act would have to go against the school. This decision from the Labour Court is an important clarification as to what the law on this issue is.

The Court has helpfully pointed out that there has been a history of uncertainty as to whom employers are in cases where an employee is engaged by one entity but is paid by a second entity.

It is our understanding that the case of the Department of Education and Skills and Anne Boyle being a decision of the Court of Appeal is being appealed to the Supreme Court. It would therefore appear that the best practice for colleagues who may have a claim on behalf of an employee will be to issue all claims against all parties so as to protect their position. The reason for saying this is evident from the case of our client against Mary Keane and Others under TED1715 where the claim was against the Members and Board of Management of the relevant school where compensation was awarded under the Terms of Employment (Information) Act.

It is highly unsatisfactory, in our opinion that the issue is not clarified as to whom an employer is. Unfortunately our legislation appears to have different definitions of employer and employee depending which Act you look at. Such a situation can arise when there are legitimate reasons for this but it is our view that there has been a haphazard approach to defining who an employer is for the purposes of legislation.