A ruling handed down in a preliminary hearing in, Scott v Chigwell School and Others, opens the way for peripatetic teachers to be awarded certain rights and protections such as national minimum wage and holiday pay, even if they are paid for directly by parents and even if their contracts state that they are self-employed.
Mrs Scott marketed herself as a freelance soprano and music teacher. She worked at Chigwell School (the School) for five years as a music teacher, providing her services to pupils and teachers.
As a visiting music teacher, Mrs Scott had the right to use the facilities in the School to teach pupils of the School. Mrs Scott had discretion as to which pupils she took on and was free to teach however she chose, she was also able to send a substitute in her place if she was not available. Mrs Scott invoiced parents directly, if they did not pay it was her financial risk. However, it was a term of the agreement between the School and Mrs Scott that she charged the advertised rate, it was not open for her to negotiate her own rate with parents.
The Employment Tribunal (ET) concluded that Mrs Scott was not an employee within the meaning of s.230(1) Employment Rights Act 1996. The main reasons for this were that she took the economic risk of parents not paying, and there was no mutuality of obligation between her and the school. That is, the school were not obliged to offer her pupils to teach and she was not obliged to teach them. It was accepted that Mrs Scott had her own business, and she was carrying on her private practice at the school.
However, the ET held that Mrs Scott was a ‘worker’ under s.230 (b) Employment Rights Act 1996 and an employee within the meaning of s.83 Equality Act 2010, granting her rights such as national minimum wage, holiday pay, whistleblowing protections and protection from discrimination under the Equality Act 2010.
The ET took a multi-factorial approach, considering the whole relationship and how it worked in practice, not just the terms of the contract. Factors that pointed towards her being a worker were that the School held itself out as offering music tuition and engaged visiting music teachers to provide that offer, Mrs Scott had to charge the advertised rate, the School set a rate for late payment and chose for the most part who the pupils were that Mrs Scott would teach. Further, the agreement included a requirement that Mrs Scott attend the AGM.
Implications for schools
This is an important decision for schools who offer lessons provided by visiting staff as it means that, despite them being classed as self-employed in their contract, visiting staff may in fact be “workers” and thus be entitled to the rights and protections that come with that status.
We would advise schools who engage visiting staff to do the following:
- Identify visiting staff within the school, including how long they have been working at the school and ascertain whether they are working privately or though other providers.
- Review the agreements between the school and the music staff to identify any issues such as the level of control between the school and the teacher (including pricing for lessons), whether the teacher can send a substitute etc.
- Investigate how visiting music staff operate within the school, are they integrated into the school and treated as staff rather than visitors? Are they expected to be at staff meetings or training days? Are they limited as to where they can go within the school?
For more information on this, or any other education legal issues you’re interested in, please contact a Partner in our Education Team or call 0191 211 7777.