Mr. John McKeon:

We welcome the judgment because in another big case, we were working on the basis of the criteria, which have confirmed the five factors and clarified what mutuality of obligation meant. Some of the appeals I spoke about earlier are on exactly that point about mutuality. It is the approach we were taking anyway. It has confirmed the approach we were taking. I do not have the judgment in front of me but I read it a number of times. There is a high-level group between the Department and Revenue parsing it line by line. The Supreme Court has now clarified the issue of mutuality of obligation in a way that it was not before. The issue arises for an employer who may operate under its understanding of the common law as it was up to this decision. They may have employed me, genuinely thinking I was self-employed, but now this judgment means I am employed. Should we retrospectively go back and say to such a person they now need to change the record for that worker over a long period of time? I would say we need to change the record.

The second issue is whether you raise a retrospective charge. There are many small employers involved as well. They are not all big employers. If I am a small employer and I genuinely thought, on the basis of the previous judgment, the Barry judgment, that the person was engaged as self-employed, and now this case has clarified that they are not, which is what that part of the judgment is getting to, and Revenue has decided one thing as a consequence of this case, should Social Protection now go back and say to that employer they owe us tens or hundreds of thousands?

The other issue the judge got to in that situation was employment law, which I mentioned earlier. The judgment was clear that employment law is different. For example, regarding the Domino's Pizza case or some of the other cases with which we are dealing, I gave the example of the accountant who is working one week a month. Under employment law, you must have 12 months of continuous employment before you get employment rights. That is different from a person being an employee for 12 weeks a year, one week in each month of the year. Does the Deputy get my point?