There have been more and more cases coming before the tribunals regarding whether an individual is self-employed, a worker or an employee. Here are the headlines:
- Can an individual who is paid a quarterly exclusivity payment be an employee?
Yes, as held by the EAT in Exmoor Ales v Herriot.
The claimant, in this case, worked for the brewery for 27 years providing accountancy services in partnership with her husband. From 2011 onwards, she received quarterly payments from the brewery.
She later brought claims for unfair dismissal and discrimination. The brewery argued she was self-employed, paid tax as if self-employed, did employment contracts for other employees but not herself and did not take part in the employee share scheme.
Unfortunately, the quarterly payment was held to be an exclusivity payment, she had no right to appoint a substitute and the brewery controlled her work.
- If there is a right to use a substitute, does this mean an individual can still be an employee?
Yes, as held by the EAT in the case of Chatfield-Roberts v Phillips and Universal Aunts
This case was brought by an individual who was a live-in carer. She was paid gross and sorted out her national insurance and tax. She was held to be an employee as she was expected to work and a sufficient degree of control over what she did. There was a right to substitute but this only happened on days off and to cover annual leave.
- Is a free-lance art educator a worker?
Yes, according to the tribunal in a case brought by 27 artists and art lecturers against the National Gallery.
27 artists and lecturers brought claims against the National Gallery – they argued they were paid regularly, taxed at source, required to attend training sessions and had appraisals. The tribunal held they were workers and not self-employed. They were not held to be employees and so the claims for unfair dismissal failed.
- Can a peripatetic music teacher engage to provide services to pupils and parents be a worker?
Yes, according to the tribunal in the case of Scott v Chigwell School.
Here, music tuition was being offered to parents by the school and a music teacher engaged to help deliver these services. The teacher was given an ID badge, had access to school facilities and was paid at a rate set by the school.
The tribunal held they were workers which gives them rights such as the national minimum wage, holiday pay and also protection in relation to whistleblowing. This could be important in the school environment if they were ever to raise safeguarding concerns.
This is another example of the tribunal being willing to look behind the terms of a written contract.
It is hard to see how the issue of worker status is going to stop growing. If you are a company using self-employed individuals, think carefully as to how the relationship is managed and can they really be distinguished from workers/employees.
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