More Independent Contractors Held to Be Workers
There have been a number of cases about worker status recently. Many of these have come from the gig economy but other sectors are also impacted.
In Scott v Chigwell School a visiting music teacher (VMT) has succeeded in showing that she was a worker, despite her contract saying otherwise.
The Facts
The School engaged Mrs Scott as a self-employed contractor. Her contract provided that she could only appoint a suitably qualified substitute to teach in her place if it was necessary to do so and that any substitute needed to adhere to the school's Safer Recruitment policy.
In common with most VMT's, Mrs Scott obtained payment for lessons direct from the parents of the pupils and was entirely responsible for her own financial arrangements including tax as a self-employed contractor.
Mrs Scott brought a number of claims against the school in the Employment Tribunal (ET) and it was necessary to determine her employment status before deciding which of her claims could proceed to a full hearing.
Why Was Mrs Scott a Worker?
The ET set out four key factors why Mrs Scott was a worker as opposed to a self-employed contractor.
- She only had a limited right to send a substitute to teach in her place.
- Her contract with the school put limits on her independence, such that she could not set her own fee and she had pupils allocated to her.
- The contract also established a level of control over her work with the school that reduced her independence - she could not choose lesson length and was limited in some ways as to the timetable she could arrange. She had to comply with strict absence and safeguarding procedures.
- She was fairly well integrated into the school, being listed as a member of staff, having a school email address, using its equipment and being insured by it.
- Written information provided to parents used the wording "we offer" when describing music lessons.
Best Practice
Whilst cases involving worker status will always turn on their particular facts, this case provides a helpful insight into the analysis applied by tribunals in status cases. It is also important to remember that this is a first instance decision and therefore not binding on future tribunals.
If a person has to provide their work personally, or only has a limited right to provide a substitute, they are likely to be a worker or an employee. The key exception to this is if the relationship is one of customer and client.
It is important that any written contract reflects the reality of what happens on a day to day basis.
For more information please contact Eleanor Boyd of our Employment Law team on 020 7665 0940, or complete the form below.