Employment status decision – National Gallery experts are workers

Background

A “worker” is either: (a) an employee (employed under a contract of employment); or (b) someone who works under a contract through which they undertake to perform work personally, for someone who is not by virtue of that contract their client or customer. In other words, workers agree to work personally and are not running their own business. Workers have various rights, including rights to holiday pay and minimum wage, and protection from discrimination. Other additional rights are only available to employees, including rights on redundancy and to make a claim for unfair dismissal.

There has been a series of cases about employment status over the last couple of years, most recently the Court of Appeal’s decision in relation to Uber drivers. The consistent trend of these cases has been to find that individuals are workers rather than self-employed – with the exception of the Deliveroo decision where a genuine right of substitution prevented a claim of worker status.

The claimants in this case were a group of educators who would deliver public lectures, tours, and outreach programmes on behalf of the National Gallery (the “Gallery”). Some of these specialists had being doing this for decades until being dismissed at short notice upon a restructure by the Gallery. The educators made various claims, including for holiday pay, discrimination, unfair dismissal and failure to consult on redundancy. The Gallery asserted that the educators were in fact independent contractors in business on their own account, and so unable to make any of these claims as they were neither employees nor workers.

The decision – workers during assignments

Following the usual approach in these cases, the EJ assessed the reality of the relationship between the educators and the Gallery by looking at a range of factors. The EJ decided that the educators were workers when they were working on an assignment for the Gallery. The key factors were:

• Training and a probation period. In order to join the team, the educators first went through a period of training and probation specified by the Gallery. There was also ongoing assessment and feedback from senior staff members, and the educators were expected to follow the Gallery’s standards on teaching practice and presentation.
• Substitution. While the Gallery asserted to the contrary, the EJ found that the educators did not have a right to appoint a substitute or swap assignments with one another.
• Integration into the organisation. Various factors indicated that the educators were highly integrated, including their inclusion in the staff directory, their inclusion in promotional materials, and a requirement to wear Gallery branded-shirts on occasions.
• Pay and taxation. The educators’ pay was processed and paid via the Gallery’s payroll. The fees received by the educators were standard and set by the Gallery, and they were not entitled to retain any tips. The educators were treated equally to salaried employees in terms of expenses, with travel and accommodation bookings and fees met in full by the Gallery.
• Mutuality of obligation. The EJ found that once an assignment was accepted, the educator was obliged to provide the work and the Gallery was obliged to pay for the work done - and this was not affected by the option for either party to cancel an assignment.

Although the educators were held to be workers, the EJ found that the educators were not employees as they did not work under a contract of employment. They were not obliged to accept any work offered to them by the Gallery, and were not penalised for declining work. The Gallery also showed various disparities between the written agreements of the educators as compared to salaried employees - including set hours, salaries, paid annual leave, sickness absence procedures, notice rights, pension benefits and disciplinary procedures. The EJ therefore found that the intermediate category of “worker” was most apt for the educators when they were working on each individual assignment.

The EJ also did not find that there was a contract in-between assignments (an “umbrella” contract). The educators had tried to assert this on three grounds - the longevity of the working relationships, the perceived regularity of working patterns, and an obligation on the Gallery to offer work. The length of the working relationships was dismissed by the EJ as it would not by itself indicate a certain form of relationship. The EJ found it would not be accurate to describe the educators as undertaking “regular” work. The alleged obligation to offer work was also dismissed, as a promise to offer as much work as possible and distribute work equitably did not amount to an obligation to actually offer work.

Implications

As in most employment status cases, this decision turns on the facts of the working relationship in practice. It also shows that it is considerably easier to show that an individual is a worker rather than an employee. An employment contract requires more by way of an ongoing obligation on both parties to offer and accept work, and there were fundamental differences between the contracts of the educators and the Gallery’s salaried employees which caused the EJ to find worker rather than employment status. This means that only the educators’ claims for holiday pay and discrimination are able to proceed.

As noted by the EJ, “The clear purpose was to enter into a liaison not involving the burdens of employment proper but rather affording both sides levels of flexibility which that form of relationship makes impossible – for the [Gallery] to pay only for the educator services required from time to time, and for the educators to work, subject to demand, when it suited them”. This type of flexible work may suit both parties and not amount to an employment contract, but it is becoming increasingly difficult for organisations to show that such individuals are not workers and deny them certain minimum rights.

The Court of Appeal’s decision in the Uber case is due to be considered by the Supreme Court, likely to be later this year. It will be interesting to see if the Supreme Court takes the opportunity to clarify the tests to be used in this type of case.

Ms A Braine & others v The National Gallery – judgment available here