Self-employed or employee? Claimant wins preliminary hearing proving employee status despite contracts stating otherwise
In the case of Ms M Williams v City Academy Arts, the employment tribunal (ET) addressed preliminary issues concerning the employment status of Ms Williams and whether she was disabled, by reason of her ADHD (combined with symptoms of anxiety and depression), under the Equality Act 2010.
Here we focus on the employment status aspect of the judgment. The full transcript of the judgment can be found here.
Background
Ms Williams was a writer, poet and qualified teacher who was engaged with City Academy Arts as a freelance writing tutor from March 2021 to March 2023. Throughout this period, she entered into five contracts within each she was described as self-employed.
Ms Williams was responsible for her own tax and national insurance contributions and had the freedom to undertake teaching assignments with other organisations. She was provided with a City Academy email address and was expected to attend biannual staff meetings. Additionally, she received training on technical aspects relevant to her role. Ms Williams also had a right of substitution which was contained in the contract.
Employed and not self-employed
The ET determined that Ms Williams was an employee of City Academy Arts within the meaning of s83 Equality Act 2010 rather than being self-employed in accordance with the various contracts she had entered into with City Academy.
This conclusion was based on factors such as the level of control exercised by City Academy, the integration of Ms Williams into the school, and the mutual obligations present in the working relationship.
Right of substitution
The right of substitution was a key feature of this case. At paragraphs 74 and 75 of the preliminary judgment, Employment Judge Emery states as follows:
‘I conclude that this is not a genuine substitution clause, it has significant penalties attached if it is exercised. In practice, City Academy wanted personal service during each course and would not tolerate substitution unless in very occasional and exceptional circumstances.’
‘For these reasons: the fettering of any right to substitute without penalty, the fettering of the right to turn down courses without penalty, plus City Academy’s degree of control over quality, and the requirement to be subject to grievance and harassment procedures if, say, an allegation is made against that tutor, I find that Ms Williams was a worker of City Academy as defined in s83 Equality Act 2010.’
Claims to proceed
As a result, Ms Williams’s claims of disability, sex and race discrimination, including harassment and victimization, were allowed to proceed. It remains to be seen whether they succeed.
Opinion
The case serves as an important reminder that the courts will always look into the reality of a working situation regardless of what contracts state. Here there was a right of substitution but the ET found that it was not unfettered. That is, if Ms Williams exercised the right, the preference was to go with other tutors they already knew. This, along with controls in terms of policies and procedures Ms Williams had to adhere to, meant that she was deemed an employee.
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