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Cite as: [1984] IR 505, [1984] IEHC 2

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The Sunday Tribune Ltd. (in Liquidation), Re [1984] IEHC 2; [1984] IR 505 (26th September, 1984)

High Court

In the matter of The Sunday Tribune Limited (in Liquidation)

No. 10,390p of 1982

[26^th of September, 1984]

Status: Reported at [1984] IR 505

Carroll J.

The liquidator of The Sunday Tribune Ltd. has applied to the Court to determine if certain people who did work for the paper published by that company were employees of the company and were entitled, therefore, to claim priority in the winding up as preferential creditors. The liquidator was not prepared to enter them in the class of preferential creditors on the grounds that income tax had not been deducted from their remuneration in accordance with the PAYE system.

1. The Examiner’s memorandum identifies the first claimant as “Patrick Woodworth, of a class for convenience described as ‘shift workers’, whose claim is as a part-time worker working under the same conditions, control and supervision as full-time employees, paid by the shift under a contract based on the house agreement applicable to all employees. This claimant worked two shifts per week.” In a separate affidavit Patrick Woodworth said that he was employed on a shift basis and that, in the beginning, he did one shift per week as sub-editor. He was required to attend at a specified time and then worked under the guidance of the chief sub-editor and to his instructions until the shift was over. The period of the shift was fixed in advance. If any work had to he done beyond the end of the shift, overtime was paid. From March, 1983, he worked two shifts per week. He worked under the same general terms and conditions (of a house agreement between the company and the National Union of Journalists) as full-time employees.

2. The next claimant is described in the Examiner’s memorandum as “Mary Holland, of a small class described as ‘regular columnist.’ Her contract agrees a fixed fee of £— per week as a journalist in relation to her weekly column, her attendance and participation in editorial conferences and whatever additional small news items came her way. For two weeks of the year, payment was to be honoured without having to supply copy. For two additional weeks, advance copy was to be accepted by the newspaper. The salary was separately negotiated and was not a minimum fixed by a trade union agreement.” In her affidavit Mary Holland says she was paid that sum per week to include a regular weekly column, attendance and participation at editorial conferences, with such further news items or items of interest as she might be able to contribute. Six times a year the column was to be a major piece.

3. The next claimant is identified in the Examiner’s memorandum as “Ronit Lentin, of a class described as ‘regular contributors’ who were paid for commissioned work not necessarily appearing weekly on a rate-per-word-basis. No reference was made to editorial control or attendance at the office.” In her affidavit Ronit Lentin said that she had been a regular contributor. She visited the office of The Sunday Tribune approximately once each week and she would either suggest a topic for an article or be asked to contribute an article of a certain length on a specific topic. She was then commissioned and paid on the basis of the house agreement between the company and the National Union of Journalists. She said that in no case was the work embarked on without a firm commission from the editor.

4. Each of the three claimants filed an affidavit to say that he or she was registered with the Revenue Commissioners under Schedule D and, accordingly, paid tax on his or her aggregate annual income from journalism.

5. I am satisfied that the fact that income tax was not deducted in accordance with the PAYE system is not the determining factor in this case. The profession of journalism is such that a journalist may have an income from more than one source under a contract of service or a contract for services or both. It appears to have been a matter of convenience, permitted by the Revenue authorities at the time, to allow payments to be made without deduction of PAYE, notwithstanding the status of the worker. At the time she was working for The Sunday Tribune, Mary Holland was also working part-time for London Weekend Television and also for The New Statesman. Patrick Woodworth, who worked part-time on shift for The Sunday Tribune, also worked for The Irish Times, the Irish Press Group and the Irish Independent Group. He said that there was no difference in practice between the way in which those with certificates of exclusion (i.e., those from whose pay income tax was not deducted under the PAYE system) worked and the way in which those without such certificates worked.

6. The determining factor is whether the work which was done by each claimant was done on foot of a contract of service which created the relationship of employer and employee or whether it was done on foot of a contract for services which did not create that relationship. The Court must look at the realities of the situation in order to determine whether the relationship of employer and employee in fact exists, and it must do so regardless of how the parties describe themselves: see Ferguson v. John Dawson & Partners. The simple test is whether the employer possessed the right not only to control what work the employee was to do but also the manner in which the work was to be done. However, that test is no longer of universal application. In the present day, when senior staff with professional qualifications are employed, the nature of their employment cannot be determined in such a simplistic way.

7. The question is dealt with extensively in Beloff v. Pressdram Ltd. One of the issues to be determined in

that case was whether copyright in a certain memorandum belonged to the journalist who wrote it or the

newspaper which published it. If the work was written in the course of the author’s employment by the

newspaper under a contract of service, the newspaper was entitled to copyright in the work under s. 4, sub

s. 4, of the Copyright Act, 1956. It was not in issue that the memorandum was made in the course of

employment but the court had to decide whether the employment was under a contract of service or a

contract for services. Ungoed-Thomas J. reviewed the earlier law and quoted from pp. 549-50 of the

judgment of Fletcher Moulton L.J. in Simmons v. Heath Laundry Company as follows:—

“The greater the amount of direct control exercised over the person rendering the services by the person contracting for them the stronger the grounds for holding it to be a contract of service, and similarly the greater the degree of independence of such control the greater the probability that the services rendered are of the nature of professional services and that the contract is not one of service. The place where the services are rendered, i.e., whether at the residence of the person rendering the services or not, will also be an element in deciding the case, but is not in my opinion decisive ....”

8. Ungoed-Thomas J. goes on (at p. 248 of the report of the Beloff Case ) to say that nowadays professional and similarly skilled persons are widely engaged under what are recognised as contracts of service, and he reviews recent authorities in relation to particular cases which have been held to be (or not to be) contracts of service.

9. The test that Denning L.J. applied in Stevenson, Jordan & Harrison Ltd. v Macdonald is there stated (at

p.111) as follows:—

“One feature which seems to run through the instances is that, under a contract of

service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.”

10. At the same page Denning L.J. also said:—

“It is often easy to recognize a contract of service when you see it, but difficult to say wherein the difference lies. A ship’s master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship’s pilot, a taxi-man, and a newspaper contributor are employed under a contract for services.”

11. Ungoed-Thomas J., having reviewed other cases as well, said at p. 250 of the report of the Beloff Case :—

“It thus appears, and rightly in my respectful view, that, the greater the skill required for an employee’s work, the less significant is control in determining whether the employee is under a contract of service. Control is just one of many factors whose influence varies according to circumstances. In such highly skilled work as that of the plaintiff it seems of no substantial significance. The test which emerges from the authorities seems to me, as Denning L.J. said, whether on the one hand the employee is employed as part of the business and his work is an integral part of the business, or whether his work is not integrated into the business but is only accessory to it, or, as Cooke J. expressed it, the work is done by him in business on his own account.”

12. The court went on to hold that the plaintiff, who was political and lobby correspondent of The Observer, was employed under a contract of service. The job of political and lobby correspondent was essential for and woven into its political coverage. The court held that the plaintiff’s job was an integral part of the business of The Observer.

13. In Patrick Woodworth’s case, his employment satisfies the simple test of control by the employer. He worked at specified times under the guidance of the chief sub-editor and to his instructions. The fact that he worked part-time does not change the nature of his employment. A person may be an employee even though employed part-time: Market Investigations v. Minister of Social Security. In addition, a person may be employed by different employers: Jones v. Scullard. Therefore, I am satisfied that Mr. Woodworth was employed by The Sunday Tribune under a contract of service.

14. In Mary Holland’s case, I am of opinion that her employment was an integral part of the business of the newspaper. The column was to run for 50 of the 52 weeks of the year. She took part in editorial conferences. There was provision for the equivalent of holiday pay. Her case is not dissimilar to that of the plaintiff in Be/off v. Pressdram Ltd. Therefore, I am satisfied that she was employed under a contract of service.

15. In Ronit Lentin’s case, I am of opinion that her employment was not an integral part of the business of the newspaper. In my opinion, she was a freelance contributor who secured commissions in advance. She was under no obligation to contribute on a regular basis. Presumably, if she did not negotiate a commissioned article, the company’s editor would get articles from some other source. Therefore, I am satisfied that she was not employed under a contract of service but was an independent contractor in respect of the articles she did provide.

16. Accordingly, Patrick Woodworth and Mary Holland were employees of the company for the purposes of s. 285 of the Companies Act, 1963, while Ronit Lentin was not such an employee.