Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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496. To ask the Minister for Employment Affairs and Social Protection if she accepts that on 2 December 2001, she wrote to the Privileges Committee as follows: ‘in rare and very limited circumstances, and only where agreed by the individual, some appeals involving a number of workers engaged by the same employers, may be determined by a sample of cases’. [42645/24]

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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497. To ask the Minister for Employment Affairs and Social Protection , if she accepts that on 5 October 2022 in reply to a Parliamentary Question from Deputy Kerrane, she wrote that her ‘Department is open to taking a ‘sample cases’ approach to determination of insurance classification, using the criteria set out in the Code, in cases involving multiple workers performing the same work for a single employer’; and if she accepts that the approach of having 'test/sample cases' is specifically precluded in the Code of Practice and by law. [42646/24]

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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498. To ask the Minister for Employment Affairs and Social Protection if she accepts that on 2 October 2000, Secretary General Sullivan wrote to PAC Chairperson Jim Mitchell accepting and conceding that her Department was using a 'test case' to label all motorcycle, van and pushbike couriers/delivery drivers as self-employed by group and class. [42647/24]

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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499. To ask the Minister for Employment Affairs and Social Protection if she accepts that on 9 May 2018, the current Secretary General of her Department wrote to PAC Chairman, Deputy Fleming, accepting and conceding that her Department used precedential group and class decisions known as 'test cases' to determine the employment status of groups and classes of workers. [42648/24]

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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500. To ask the Minister for Employment Affairs and Social Protection if she accepts that in March 2019, Minister Doherty accepted and conceded in an interview with a journalist (details supplied) that her Department uses precedential group and class decision to determine the employment status of groups and classes of workers and that her Department is fully aware that this is not in accordance with legislation. [42649/24]

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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501. To ask the Minister for Employment Affairs and Social Protection if she accepts that the Oireachtas SW Committee Report (2021) recommends that it is the liability of her Department to rectify the misclassification of workers through the use of unlawful test cases. [42650/24]

Heather Humphreys (Cavan-Monaghan, Fine Gael)
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I propose to take Questions Nos. 496 to 501, inclusive, together.

The matter of ‘test cases’ for use in determining employment status has been raised on multiple occasions at various Dáil Committees and elsewhere and my Department’s response remains unchanged.

Decisions with respect to insurability of employment decisions are made through the application of criteria agreed with the Social Partners and published in the Code of Practice on Determining Employment Status. These criteria were developed from a review of a number of cases in the 1990s. The examination of these cases, taking account of case law from the courts, allowed the identification of criteria that could be used by Deciding Officers and Appeals Officers when making decisions in relation to the correct class of PRSI applying to a worker’s employment. The objective in doing this was to ensure consistency in decision making, something which I am sure the Deputy will accept is a necessary part of public administration.

These criteria are applied by Deciding Officers in my Department and Appeals Officers in the Social Welfare Appeals Office on each occasion that they assess the PRSI status of a worker’s employment. Employment status decisions are not made by the Department or the Social Welfare Appeals Office without an investigation having been carried out into the actual circumstances of the person's employment with each decision being based on the application of the criteria to those circumstances. Cases where a worker preforming a particular type of occupation is assessed to be either employed or self-employed is not determinative of a decision with respect to the employment of another worker in the same type of occupation.

Separately, the Department is open to taking a ‘sample cases’ approach to determination of insurance classification, using the criteria set out in the Code of Practice for the Determination on Determining Employment Status, in cases involving multiple workers of a single employer. In indicating its openness to this approach, the Department has always stressed that it would only do so where both the employer and the workers concerned agree with the approach and on the basis that each worker can seek, and will always have the option of having, their case determined on an individual basis and will also have the option of appealing any decision on an individual basis.

The Comptroller and Auditor General has examined the Department’s approach to the determination of employment/self-employment on a number of occasions over recent years, most recently in 2022. This examination included reviews of cases which it selected at random and found that cases were determined on their own merits through the application of the criteria set out in the Code of Practice on determining employment status.

I trust this clarifies matters for the Deputy.