Good morning and welcome back to your weekly case law update. Much of last month’s newsletter had employment status features on British Cycling and Hermes, this week’s case follows that well-trodden path to determine whether the Claimants were employees, workers or self-employed.
Employees are anyone who is employed to do work under a contract of employment. Workers are anyone who has a contract to perform work personally where the recipient of the person’s services is not a client or customer of the worker.
Our previous case of Pimlico Plumbers included a handy table about factors that determine employment status. The key to remember is that the ET look beyond the written contract and examine the reality of how the contract was performed when deciding employment status.
The questions this week:
Are freelance art educators employees?
Are freelance art educators workers?
Ms Braine was one of 27 Claimants who were all so-called freelance educators working for The National Gallery, the Respondent, as part of its art education department. The Claimants were offered jobs on a periodical basis and these included running tours, giving lectures, offering art classes and outreach in schools and hospitals.
The Claimants operated as freelancers under various contracts. However, before they began their first contract, each Claimant had to undergo training to learn the standards and style of the Respondent.
After training was completed, the Claimants were put on a probationary period of around 6 months before being added to the freelance roster on a permanent basis. Throughout each Claimant’s time with the Respondent they were routinely observed and given feedback about how best to perform in their role.
Some time later the Claimants were offered standard terms that stated there was no obligation for the Respondent to offer work and the Claimants could accept/reject any work offered to them. However, the Claimants would be on the Respondent’s payroll system and have tax/NI taken out at source.
The Claimants were granted several privileges afforded to other employees of the Respondent, including: access to computers and copiers; overnight expenses; access to the staff canteen; invitations to private viewings; and access staff discounts. The Claimants were also required to wear the Respondent’s clothing and were listed as staff in the Respondent’s directory.
The Claimant’s did not have the right to substitute themselves for another person if they were unable to attend work. Some of the Claimants also worked for other galleries between contracts with the Respondent but these did not offer the same benefits or integration as the Respondent’s contracts.
Following a restructuring of the Respondent, many of the Claimants were let go and they brought claims including unfair dismissal and discrimination. Unfair dismissal requires employee status and discrimination requires worker status. The Respondent’s view was that all Claimants were self-employed.
The ET held that the Claimants were workers and not employees of the Respondent. Its reasoning was despite there being no contract of employment – or continuity of employment between jobs – the Claimants had to perform the jobs personally, were subject to managerial control and heavily integrated into the gallery.
As a result of being workers the discrimination claims could proceed but the unfair dismissal claims failed as the Claimants did not have the requisite employment status.
The takeaway point:
In this case the Claimants were workers. However, the ET made specific reference that not every art education freelancer would be a worker. For example, the work the Claimants did at other museums did not offer the same level of integration or managerial control as the work for the Respondent. In those circumstances the Claimants would have been self-employed.
Another interesting point in this case is that it was against a quasi-public sector/third sector employer. The cynical reader might have viewed the British Cycling decision as a sign the employment status bandwagon would not impact the public sector as heavily as the private sector. However, this case shows the wagon is not slowing down!