Ms Joan Gordon:

I was going to comment on that. I did not have this particular letter but I made it my business to find it. It is the case that the then Secretary General of the Department, in correspondence with the then Chairman of the Committee of Public Accounts, in October 2000 referred to a number of representative test cases which were selected in 1993 and 1994 for investigation and formal decision. I assume that was a decision by deciding officers and one or two made their way to the appeals process. That process resulted in a decision by an appeals officer in June 1995. The latter decided, I presume among other things, that a worker in a particular sector was self-employed if he or she provided his or her own vehicle and equipment, was responsible for expenses, including taxes, insurance and maintenance, while payment was made on the basis of rate per job. The Secretary General at the time also outlined that the appeals officer's decision to establish the criteria was generally accepted to be the employment status of workers in that sector. However, the Secretary General also referred to subsequent discussions with trade union representatives on the insurability of workers in that sector in the context of the Programme for Prosperity and Fairness. It is my understanding that the outcome of these discussions was the establishment of the employment status group which developed the code of practice for determining employment and self-employment which was drawn up in 2001.

That code was prepared, on a tripartite basis, by the group set up under the Programme for Prosperity and Fairness in response to concerns that some individuals were categorised as self-employed when the indicators were that employee status might be more appropriate. The objective of the code was to eliminate misconceptions and provide clarity. The code postdated the 1995 decision. Our decisions in the appeals office on the insurability of workers are made by reference to the code and the abundance of legal principles emerging from the case law of the courts. They are not made with reference to that test case or any other test case. Obviously, we strive to be consistent. However, consistency is achieved in this area by reference to using the code and principles emerging from the court. What I have set out is my understanding. I cannot obviously speak for the Department. We do not use the secret precedential cases or this specific 1995 decision.