The High Court has ruled that retrospective changes to the LGPS exit credits regime were lawful – and gave some helpful guidance around the new discretion to pay an exit credit.
The tribunal decision in the case of Scott v Chigwell School last week might cause school managers and bursars some sleepless nights as they process its ramifications.
Mrs Scott is a peripatetic singing teacher who has pupils at the school. She successfully argued that she was in fact a worker, employed by Chigwell School from April 2014 to May 2018. With the status of “worker” comes certain entitlements such as paid holiday, national minimum wage etc., to which she is now eligible.
Employment status checklist
There are essentially three categories of employment status under UK law; employee, worker and self-employed contractor:
- An employee; is employed under a contract of employment; is under a “mutual obligation” to carry out the work which the employer provides; is required to carry out the work personally – they cannot substitute themselves; and is entitled to a raft of employment protection laws, i.e. the right not to be unfairly dismissed, the right to a redundancy payment, the right to paid holiday and sick pay etc.
- A worker; is employed under a contract; is under a “mutual obligation” to carry out the work which the employer provides; is required to carry out the work personally – they cannot substitute themselves; but is not employed under the same level of control as an employee so is only entitled to a limited, but key, number of employment rights, i.e. the right to paid holiday, the right to be paid the National Minimum Wage.
- A self-employed contractor; is not employed under a contract of employment; is able to use another individual to carry out the job they are paid to complete; is under no obligation to accept work or carry it out; and is not entitled to any employment benefits.
The Employment Judge weighed up the arrangements between Mrs Scott and the school to assess her status. He concluded that the school did exercise a level of control over Mrs Scott which reduced her independence; her teaching was offered as part of the school’s service to parents and she was integrated into the school, i.e. she was allowed access to the site and was included in a list of teachers etc. Importantly, while she could ask another teacher to teach her lessons, this was a limited right and subject to the approval of the school and could only be exercised when necessary. With these reasons taken into consideration, the Judge concluded that she was a worker employed by the school. Mrs Scott also helped run some music ensembles in the school and was available to help with school concerts and productions. The Judge ruled that when performing these roles, Mrs Scott was not a worker but instead a self-employed contractor.
This is an important case for most schools who offer music lessons provided by visiting music staff as part of their curriculum. The arrangements for Mrs Scott were standard and so this ruling has wide implications. It is, however, important to note that Mrs Scott provided her music services privately to the school and not through the local authority/music hubs. The former tends to be the case in the independent sector. This is not always the case in the state sector where the local authority or other music hubs often provide the music staff. For most of these providers, music teachers will have a contract of employment with the authority or hub and are considered workers and sometimes employees. The authorities/hubs will then ensure they receive paid holidays etc. for the work done through that service. That said, schools are not bound to use these music services providers and for academies especially, it might be more cost-effective to go outside these providers and source other musicians. It is at that point that this case might bite; the visiting music staff could become employed as workers by the school.
In this scenario, the following is advised:
- Conduct a full audit of visiting music staff; how long they have been working at the school and ascertain whether they are working privately, or through other providers;
- Carry out a study of all the paperwork/contracts/agreements between the school and the music staff to check for any issues such as the level of control between the school and the teacher, whether the teacher can substitute themselves etc.; and
- Conduct an investigation into how music staff working privately operate within the school – how integrated are they within the school? Are they allowed across the school and considered part of it, or are they limited in where they can go and treated as visitors and not staff? Are they expected to be at staff meetings or staff training days?
If you’d like any further advice concerning this article, please contact Katherine Sinclair.
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