A solicitor acting for the company behind one of Ireland's top country music acts says they are appealing a landmark ruling on the employment status of a musician "on behalf of the music industry" because the industry "couldn’t operate" without relying on independent contractors.
It’s after the Workplace Relations Commission (WRC) directed the management of the Michael English Band, MEPC Music Ltd, to pay nearly €44,000 to fiddle player Matt McGranaghan after concluding he had been an employee - and not a "gig-to-gig" contractor as it had argued.
Mr McGranaghan secured the awards for unfair dismissal and various further breaches of employment rights in September after taking statutory complaints against his former employer - alleging in evidence earlier this year that he had been put in a situation of "bogus self-employment".
The tribunal heard Mr McGranaghan made around €50,000 a year for playing around 220 gigs a year over the course of his six years in the band.
The tribunal’s decision last month marked the first time the employment tribunal applied the principles of the Supreme Court’s ruling in 2023 on distinguishing employees from contractors to the entertainment industry.
A notice of appeal just issued by the company, which is a joint venture between Mr English and country music promoter Paul Claffey, indicates all findings of breaches of employment legislation in Mr McGranaghan’s case are being appealed to the Labour Court. Grounds of appeal have not yet been set out.
It’s also understood Mr McGranaghan has also given notice that he intends to appeal the adjudicator’s findings on one count under the Organisation of Working Time Act concerning his annual leave entitlements.
In the decision, WRC adjudicator Caroline Reidy noted that the Supreme Court had rejected the "mutuality of obligation" test which had been routinely used in such cases up to that point – namely that in order to proceed to an examination of the conditions of employment, there had to be an obligation on an employer to provide work and for a worker to work when work was given.
She ruled on the basis of a new five-part test set out by the Court which considered the exchange of money for work, the level of control exercised by the alleged employer, whether the purported employee was providing personal services or had the right to engage a substitute, and the legislative context.
Having considered detailed evidence on Mr McGranaghan’s working life with the band – down to the fact that he wore a shirt provided by its management - Ms Reidy ruled that the complainant could not be a contractor and had been an employee of the company, giving her jurisdiction to rule on the employment rights complaints he had lodged.
She found Mr McGranaghan’s dismissal was unfair and awarded six months’ salary, €26,880, for the breach of the Unfair Dismissals Act 1977.
Ms Reidy also awarded compensation totalling €12,480 for breaches of employment rights under the Organisation of Working Time Act 1997, the Terms of Employment (Information) Act 1994, and the Minimum Notice and Terms of Employment Act 1973. Her decision also awarded Mr McGranaghan four weeks’ notice pay, €4,480, under the Payment of Wages Act 1997.
MEPC’s lawyers maintained the position that Mr McGranaghan was a contractor with no recourse to the employment legislation, and when questioned, Mr McGranaghan accepted he had not received various documents which would be usual in an employment relationship, like a company handbook and disciplinary policy.
"So, you were never given any document from MEPC Ltd?" its barrister, Derek Ryan BL asked the worker in cross-examination.
"That’s a consequence of bogus self-employment," Mr McGranaghan said.
The complainant’s representative, Martin McMahon, submitted that treating Mr McGranaghan as self-employed created a "substantial" 15% saving on employer PRSI contributions compared with direct employment.
At a preliminary hearing in late 2023, Mr McGranaghan said he had repeatedly raised the question of employment status before his dismissal from the band in September 2021 – before revealing that he had secretly recorded meetings on the subject over the course of a number of years.
Quoting from what he said was a transcript of one conversation with Mr English in August 2021, Mr McGranaghan said Mr English told him the month before the dismissal email: "I’ve too many things going on and I’m going to continue hiring musicians the same way I’ve always done for the last 22 years. If that doesn’t suit any of ye I’d appreciate it if you’d let me know now."
Reacting to the appeal notice today, Mr McGranaghan’s representative, Martin McMahon, called the appeal a "waste of time" and "an abuse of process".
"The Minister for Social Welfare is failing in her statutory obligations. It is the policy of the Department not to prosecute employers. If she did, this case would not be going to the Labour Court," he added.
The company’s solicitor, John Brady of Dillon Leetch and Co, said the band’s management "feels that on behalf of the music industry it would have absolutely no option but to appeal the decision in the way it was provided".
"99 per cent of the industry operates with independent contractors. The industry couldn’t operate any other way," he added.
