Music peris and assessing employment status

Posted on December 2nd, 2022

In Mr Alex Kitchener v Cranleigh School, the employment tribunal (ET) considered whether Mr Kitchener, a music peri, was an employee within the definition of s230 of the Employment Rights Act 1996.

Mr Kitchener is a music teacher who started working at Cranleigh School, a co-educational independent day and boarding school in Surrey. On 24 April 2009, he signed an agreement with the school, which described him as a self-employed visiting music teacher (VMT).

Claims for unfair dismissal, notice pay and holiday pay

Mr Kitchener brought claims for unfair dismissal, notice pay and holiday pay. In order to succeed with these claims, the ET judge had to first decide whether Mr Kitchener was an employee.

The law re employed v self-employed

The judge considered the facts of the case, together with associated case law regarding the following areas:

  • The contractual provisions and whether, or not, those provisions do represent the true relationship between the parties.
  • The degree of control exercised by the employer.
  • The presence or absence of mutuality of obligation to provide or do work.
  • The duty to provide personal service, that is, was there any right of substitution?
  • The provision of tools, equipment, instruments etc.
  • The arrangements for tax and national insurance.
  • The opportunity to work for other employers.
  • Other contractual provisions.
  • The degree of financial risk and responsibility for investment and management.
  • Whether the relationship of being self-employed is a genuine one or whether there is an attempt to avoid modern protective legislation.
  • The degree of integration into the employer’s business.

Registered with HMRC as self-employed

Mr Kitchener signed the agreement and accepted that, during his time at the school, he was registered as a self-employed person with HMRC. In fact, he stated that he had always worked as a self-employed person and had never been in employment as a music teacher through PAYE.

Mr Kitchener accepted that he did not receive the usual benefits that an employee would be entitled to and that, at no point, did he challenge why he was not in receipt of holiday or sickness pay.

Invoiced parents directly

During the hearing, Mr Kitchener said that he worked as a self-employed music teacher at five other schools. He also stated that he invoiced parents directly and that he would decide how much work he would take on.

The judge found that the fact that the contract for payment of fees was directly with the parents was, in his view, entirely contrary to there being an employment relationship with the school.

Right of substitution

The right of substitution was discussed in detail. Mr Kitchener claimed the stated right of substitution was effectively fettered by the conditions the school required for substitution. These conditions related to safeguarding checks: that the school required any substitute VMT to be DBS checked by the school and two satisfactory references needed to be provided. The judge found the explanation by the school for the high standards of safeguarding credible, particularly given it is a boarding school.

As part of his evidence, Mr Kitchener also said that he had never sought to use a substitute. However, Mr Saxel, the school’s Director of Music, stated that most VMTs do not want to use a substitute if they were, for example, taken ill, because they are generally able to re-arrange the sessions; understandably, they do not wish to lose their income.

Dress code

There was also a discussion around the dress code for staff at the school, which stated that men must wear a shirt and tie as a minimum. Mr Saxel said that he was aware that Mr Kitchener did not always wear a tie. He was encouraged to wear a tie, but that had he been a staff member, he would have faced the disciplinary process.

ET findings

Controls were for safeguarding

The judge stated that, drawing together all the evidence, he found that Mr Kitchener was a self-employed music teacher. He found that, on the balance of probabilities, the agreement was a true representation of the contractual relationship between the parties. Although the school exercised some control over elements of the work done, he accepted that these controls were for safeguarding and practical reasons, such as trying to fit the lessons into a pupil’s timetable in a way that worked for all.

School under no duty to provide work

The judge was satisfied that the barriers to a substitute were genuine safeguarding concerns and the business need of the school to secure qualified teachers. The school was under no duty to provide work and simply provided a list of pupils to the VMTs, who could then negotiate directly with parents. The school was not part of the contractual agreement between the parent and the VMT.

Used own equipment

Mr Kitchener used his own equipment, organised his own tax and national insurance and took the financial risks in the way he organised his business. He was not entitled to, and did not expect, the kind of benefits associated with employment.

Genuine self-employed

The judge found that the control, risk and important features of running his business were the responsibility of Mr Kitchener. Therefore, the judge found that the relationship was as a genuine self-employed music teacher.

Not a worker

The judge also found that Mr Kitchener failed to establish that he was a worker. He had not agreed to provide services personally to the school. The agreement with the school was not the provision of his services, but the way he should conduct himself when on school premises. The actual provision of his services as a music teacher was to the pupils/parents and the school was not a party to that contract.

Claims dismissed

As a result of the findings, Mr Kitchener’s claims for unfair dismissal, notice pay, and holiday pay were dismissed.

Summary and advice

This case demonstrates that schools should ensure that the agreements they have in place with music peris clearly set out the working relationship. An employment tribunal will consider every aspect of the working relationship in deciding whether, or not, an individual is genuinely self-employed.

Interestingly in this case, the fact that the right to substitution was, in part, restricted and the fact that Mr Kitchener had never used the right, did not mean that the judge automatically concluded that he was an employee.

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