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The latest on employment/worker status

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In the latest decision on employment status, an Employment Tribunal has held that a group of “Educators” conducting tours, sessions and courses for schools and other visitors to the National Gallery (the Gallery), as well as providing sessions in the community, are workers and not
self-employed “freelancers” as the Gallery had long categorised them.

Following a reorganisation, the existing relationship with the 27 claimants ended and eight of them were offered permanent employment contracts. The claimants had been engaged by the Gallery for at least 10 and, in some cases, longer than 40 years. The claimants variously brought claims for unfair dismissal, discrimination, unpaid holiday pay and failure to consult under the Trade Union & Labour Relations (Consultation) Act 1992 (the Act) against the Gallery. The discrimination claims are yet to be determined but, on the question of employment status, the Judge accepted that the claimants were workers – but stopped short of accepting the claimants’ argument that they were employees. The Judge also rejected the claimants’ assertion that, between performing assignments at the Gallery, they were engaged under umbrella contracts.

The Judge’s analysis considered a number of factors, including a finding of fact that the Educators were not obliged to accept assignments offered to them by the Gallery. The Judge considered this a key factor in determining that the Educators were workers rather than employees. The Judge also found that, when the Educators did accept assignments, they were obliged to provide their services personally and were not entitled to provide a substitute. This was a key factor in the Judge’s reasoning as to why the Educators were workers and not self-employed.

This decision, although not binding, is significant as the first example of the highly topical question of employment status being determined in the public sector. The judgment also provides a useful summary of the key case law and principles relevant to determining employment status and the Judge’s analysis highlights the extent to which each case really will turn on its own facts.

It is worth noting that, although largely treated as self-employed by the Gallery, the Claimants had been treated as employees for tax purposes since 1999. The Judge did not consider this determinative of the question of status for the purposes of employment law. Employers should remember that, whilst similar, the questions to be determined by HMRC and an employment tribunal when considering employment status are separate and distinct.

This case also considered whether the requirement to collectively consult on proposed redundancies under section 188 of the Act is limited to employees or if, when read in light of EU law, it should extend to workers. Whilst the Judge expressed the view that, as the Act specifically references “employees”, it followed that to include workers within its scope would go too far, she did not go into an analysis as to whether, in principle, EU law required the Act to extend to workers. The question of Brexit aside, this might be one to watch in future.