Appeal court finds pizza delivery workers are self-employed

The Court of Appeal (CoA) has found delivery drivers for a company in the Domino’s Pizza franchise must be treated as self-employed independent contractors.

The appeal court overturned a High Court finding in 2020 that the drivers should be treated as PAYE workers rather than self-employed.

In a two-to-one majority judgment the Court of Appeal allowed an appeal by Karshan (Midlands) Ltd, trading as Domino’s Pizza, against a Revenue appeals commissioner’s findings that drivers working in 2010/11 under contracts “of” services were taxable workers paying PAYE and national insurance.

Karshan claimed they operated under contracts “for” services, were therefore self-employed, and responsible for their own tax deductions.

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In 2020, the High Court dismissed the company’s appeal brought against an October 2018 appeals commissioner’s finding. That court found the appeals commissioner, in relying on English law on mutual obligations between worker and employer, did not go against Irish law but “rather recognised the necessity to adapt to modern means of engaging workers”.

Karshan had not discharged the burden to establish the commissioner misapplied the law in Ireland concerning the concept of mutual obligations, the court also found.

Karshan appealed and Revenue opposed the appeal.

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Two of the three judges who heard the appeal, Ms Justice Caroline Costello and Mr Justice Robert Haughton, allowed the appeal, while Ms Justice Máire Whelan dismissed it.

Ms Justice Costello found the appeals commissioner erred in finding that there was mutuality of obligation in the contractual arrangements between Kashan and the drivers. “That being so, it was not possible that the drivers were engaged on a contract of service and this conclusion ought to have been dispositive of the issue before her [appeals commissioner]”, she said.

Ms Justice Costello also found the High Court judge erred in upholding the commissioner’s determination and in failing to identify the commissioner’s errors in that regard.

Mr Justice Haughton agreed with Ms Justice Costello that the requirement of mutuality of obligation was absent from the arrangements/discrete contracts under which the drivers undertake delivery shift work. It was, therefore, not necessary to consider whether the further indicia of a contract of employment were satisfied, he said.

Ms Justice Máire Whelan, dissenting, was satisfied that as a matter of law the High Court judge was entitled to find that the commissioner was correct in her interpretation and application of the mutuality of obligation principle along with the other constituent indicia of the contract of service.

The appeal court made a declaration that pizza delivery drivers engaged by Karshan, who worked during 2010 and 2011, did so under contracts for services as self-employed independent contractors