Should peripatetic teachers engaged by schools be recognised as workers and offered worker protection as opposed to being self-employed?

Summary

The ruling of a recent preliminary hearing, Scott v Chigwell School, could affect the employment rights of thousands of peripatetic teachers across the UK.

The Employment Tribunal (‘ET’) has ruled that, in her work as a Visiting Music Teacher, Mrs Scott:

  1. Was not an employee within the meaning of s.230(1) Employment Rights Act 1996;
  2. Was a worker within the meaning of s.230(b) Employment Rights Act 1996;
  3. Was an employee within the meaning of s.83 Equality Act 2010

However, in her work with ensembles and other ad hoc work, including performances and chaperoning, Mrs Scott was neither an employee, nor a worker and nor an employee in the extended sense under the Equality Act 2010.

This development means that as a Visiting Music Teacher, Mrs Scott is afforded certain rights and protections such as holiday pay, national minimum wage, whistleblower protections and protection from discrimination under the Equality Act 2010.

Facts

Mrs Scott sings and teaches music for a living. She markets her services to the world at large as a freelance soprano and music teacher. For a period of five years she has worked at Chigwell School (‘the School’) in the visiting instrumental team. Additionally Mrs Scott also ran various ensembles and ad hoc work in the School. Alongside this, Mrs Scott deals with private practice of pupils externally.

Mrs Scott had a Visiting Music Teacher’s contract with the school. This, amongst many other factors, included the right for her to;

  • Use the facilities in the School
  • Teach the pupils of the School
  • Be responsible for the pupils wellbeing
  • Be aware of the Department handbook

Within this contract, on the other hand, Mrs Scott was required to;

  • Obtain payment for lessons directly from the parents
  • Be responsible for paying her own tax and national insurance as a self-employed contractor
  • Pay for her own DBS checks
  • Pay to the school at the end of each term, the schools provision of facilities.
  • Pay the school a fee of £5 per pupil, per term.

The ET was concerned with deciding her legal status when she was working at the School as this would have an effect as to whether or not she could bring any claims to a full hearing.

Outcome

The ET concluded that in her work solely as a Visiting Music Teacher, Mrs Scott was not an employee within the meaning of s.230(1) Employment Rights Act 1996, for the reasons that she took the economic risk and there was no mutuality of obligation between pupils in that she could carry on her private practice at the school.

However, Mrs Scott was granted worker status together with protection as an Employee under the Equality Act 2010. This is because she had some level of control and some level of integration which meant that she could be distinguished from a self-employed tutor.

Workers in this sense are those who have ‘entered into a contract whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business or undertaking carried on by the individual.’ S.230 (b) Employment Rights Act 1996. – From this, the ET concluded that the School could not be regarded as a client or customer of Mrs Scott and was therefore considered to be a worker.

The ET added that contracts for these positions generally say the tutor is self-employed, but just because that is what the contract says does not mean that they are not workers.

In her ad-hoc and ensemble work, Mrs Scott’s lack of mutuality of obligation that existed was inconsistent with a contract of employment because there was no obligation to offer or do the work.

This case will be discussed further in a final hearing to assess the claims Mrs Scott may wish to bring against her employer now she is afforded the rights of a worker and an employee under the Equality Act 2010.

Implication for Employers

This case paves the way for thousands of peripatetic teachers nationwide to have their employment status altered and for them to be given the same rights as workers.

It is vital that employers are not dismissive to any potential claim based on the fact a teacher may contractually be classed as self-employed. An open mind is required to assess the level of integration and control one might have as to consider the vital protection that thousands of workers have been without.

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