Self-employed or employee?

Rogers v Craigclowan School Mr Rogers, the claimant, taught children how to play the bagpipes at Craigclowan School, a preparatory school run by the Respondent charity. When he started, he received a letter from the head teacher setting out certain terms of engagement, including notice periods, pay, and the fixed term nature of the contract. When the question arose as to the nature of the engagement, Mr Rogers contended that he was an employee of the School; however, the School came to the conclusion that he was a self-employed contractor. The determination of this question has many consequences because an employer’s obligations toward an employee are vastly more significant than towards a self-employed individual. When Mr Rogers sought a declaration as to his employment terms and conditions at Tribunal, at the same time as claiming that an unlawful deduction had been made to his pay, the Tribunal found that he was a self-employed contractor. Mr Rogers appealed. The Employment Appeal Tribunal agreed with the original Tribunal decision. The Tribunal will ask itself certain questions of the working relationship when determining the employment status of an individual. The areas of questioning are set out below: Control – does the ‘employer’ have control over the working practices of the individual? The Tribunal found that Mr Rogers himself controlled how he worked. The School did not specify the syllabus to be taught and Mr Rogers was free to choose which accrediting body the pupils should study for. Mr Rogers supplied the necessary materials initially, and subsequently, the pupils were responsible for providing them. He was not required to attend training days, parent’s evenings or take part in appraisals. He had never taken paid holidays, nor received Statutory Sick Pay when he was ill. Personal service – in order to be an employee, the individual must be required to do the work themselves. It was found that on an occasion when Mr Rogers was not well and could not teach, he provided a substitute to teach his classes therefore there was no requirement for him to do the work himself. Mutuality of obligation – there must be an obligation on the ‘employer’ to provide work, and the individual must be required to accept it. The Tribunal found that Mr Rogers was not obliged to take on any pupil and he was only paid for hours worked. It was noted that Mr Rogers had never refused to take a child on. Although Mr Rogers was paid net of tax and national insurance, the Tribunal placed no weight on this. The Tribunal had been entitled to find that Mr Rogers was a self-employed contractor and the appeal failed. For further clarification of this or any other matter relating to employment law in schools or other education establishments, clients should call the specialist Education Team on 0844 892 2810.

Suggested Resources