A former fiddler for top country music star Michael English has won nearly €44,000 for unfair dismissal and breaches of employment rights after a tribunal rejected claims that the musician was a contractor working “gig to gig” for six years.
The Workplace Relations Commission (WRC) has ruled that the musician, Matt McGranaghan, was unfairly sacked by the management of the Michael English Band – MEPC Music Ltd, in September 2021 following a row over employment rights.
The tribunal’s decision on the case, published on Thursday marks the first time it has applied the principles of the Supreme Court’s ruling last year on distinguishing employees from contractors to the entertainment industry – “the original form of the gig economy”, as it was described by a barrister acting for the band’s management.
At an initial hearing into his complaints under the Unfair Dismissals Act 1977 and other employment statutes last year, Mr McGranaghan told the WRC he secretly recorded a band meeting in August 2021 when Michael English said making band members employees was “a non-runner”.
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“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,” the singer is alleged to have said.
Mr McGranaghan was told by email that his services were no longer required the following month and received no notice pay upon the termination of the relationship, the tribunal heard.
Two years earlier, Mr McGranaghan told the tribunal, he had raised the question of employment status – and Mr English had made it clear to him that the band’s manager, music promoter Paul Claffey, wanted him “gone”.
“I could easily pick up a fiddle player – pick up the phone and say: ‘You want a job?’ and I’d get 10 who want it. I’ve got a good name in this business. I’m not difficult to work for. I’m paying the going rate. I’m 100 times busier than any other band, so I can do that,” Mr English was alleged to have told Mr McGranaghan at a meeting at the Kildare Village shopping centre in May 2019.
Mr McGranaghan said he was quoting from transcripts of a series of recordings he had made in the course of the dispute without Mr English’s knowledge when he referred to these conversations at a preliminary hearing in 2023. A barrister acting for the band’s management had objected to the material being aired.
WRC adjudicator Caroline Reidy heard extensive evidence from both parties on the circumstances of Mr McGranaghan’s working life with the Michael English Band at a hearing at the WRC’s offices in Sligo in January this year.
Mr English had been set to give evidence in defence of the complaints, but departed at lunchtime that day. The tribunal was told he had a prior commitment, and the complainant side agreed the case could go on without the singer’s evidence being required.
MEPC Music’s barrister, Derek Ryan, said it “vigorously and strenuously” denied that Mr McGranaghan was ever an employee and maintained he had always been a contractor – with no recourse to the Unfair Dismissals Act.
Giving evidence, Mr McGranaghan urged the WRC to find that he was in insurable employment with MEPC Music, a finding that would set aside a previous ruling by the Social Welfare Appeals Office.
Mr McGranaghan said that 98.7 per cent of his annual earnings came from MEPC Music, the joint venture of Mr Claffey and Mr English. However, the suggestion that he also received payments from a different firm, Paul Claffey Tours Ltd, was “one of the key points used by the social welfare appeals office to try to diminish the working relationship” with MEPC Music Ireland Ltd.
“This is a hugely important point. I was never paid by Paul Claffey Tours,” he said.
Mr Ryan put it to the fiddler in cross-examination: “My client is going to say you were gig to gig.” The claimant accepted when questioned that he was never given a contract, a written statement of terms and conditions of employment, or a set of disciplinary procedures.
“So, you were never given any document from MEPC Ltd?” counsel asked.
“That’s a consequence of bogus self-employment,” Mr McGranaghan said.
The complainant’s representative, Martin McMahon, said that his client made €50,000 annually for playing around 220 gigs a year – adding that treating Mr McGranaghan as self-employed created a “substantial” 15v per cent saving on employer PRSI contributions compared with direct employment.
In legal submissions, Mr Ryan argued that the music industry and theatre industry was “the original form of the gig economy” and compared it to the situation of barristers being repeatedly engaged by solicitors, but not becoming employees.
The respondent also contended that Mr McGranaghan had been able to decide whether he wished to take up a gig and so there had been no “mutuality of obligation” on the parties provide work, and to work when work was given. Mr Ryan submitted that the case law required mutuality of obligation to determine that an employment relationship existed.
In her decision, WRC adjudicator Caroline Reidy noted that the Supreme Court had rejected the “mutuality of obligation” test referred to by Mr Ryan in its decision on Revenue Commissioners v Karshan (Midlands) Ltd last October and had set out a new test which considered the exchange of money for work, the level of control exercised by the alleged employer, and whether the purported employee was providing personal services or had the right to engage a substitute.
Ms Reidy noted that the relationship between Mr McGranaghan and MEPC Music involved the weekly exchange of money for work as well as the provision of his personal services as the band’s “resident fiddle player” – with substitutes only an “exception”.
There was also sufficient control exercised by the employer to potentially qualify the relationship as employment, she wrote, as Mr McGranaghan had “no flexibility” on when he played with the band, wore a uniform, was told what to play, and took direction from the company.
On this basis, Ms Reidy ruled that Mr McGranaghan could not be a contractor and had been an employee of the company, giving her jurisdiction to rule on the ten employment rights complaints he had lodged.
She found Mr McGranaghan’s dismissal had been unfair and awarded the musician six months’ salary for his losses, a sum of €26,880, for the breach of the Unfair Dismissals Act 1977.
The finding was on the basis of an email to Mr McGranaghan on September 22nd 2021 telling the fiddler the company was “no longer using his services” and the company’s stated position that it was “treating him as a contractor and not an employee”.
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. Mr McGranaghan is also to receive four weeks’ notice pay, €4,480, under the Payment of Wages Act 1997.
In total, MEPC Music Ltd has been directed to pay Mr McGranaghan €43,840 on foot of his complaints.
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