Bagpipe instructor fails in Employment Tribunal claim because he was self-employed

Direct 2 Lawyers
March 12, 2013

A former bagpipe instructor at a Perth independent school has had his claims rejected by the Employment Tribunal.

Mr Gordon Rogers commenced employment with Craigclowan, an independent fee-paying preparatory school for students up to the age of 13, in 1996 after being invited by its then-headmaster to work part-time as a “piping instructor” at the school. He continues to work in this position but problems arose for Mr Rogers in 2012 when a new headmaster joined the school and attempted to clarify the “grey area” relating to the employment status of visiting music teachers at the school. The visiting music teachers were therefore offered contracts that confirmed that they were self-employed but Mr Rogers refused to sign this. He subsequently consulted employment law solicitors and issued complaints that the school had failed to provide him with terms and conditions of employment and had unlawfully deducted his wages under the Employment Rights Act 1996.

The Employment Tribunal in Perth heard that Mr Rogers did not need to attend parents’ nights at the school and that he did not receive holiday pay, which suggested that he may have been self-employed. However, Mr Rogers was paid his salary net of National Insurance and tax and visiting music teachers were subject to the school’s disciplinary rules (as another visiting music teacher found when it was alleged that he had engaged in inappropriate conduct). The Employment Tribunal determined that – on the balance of probabilities – Mr Rogers was not employed by the school as an employee and that he was operating on a self-employed basis. His claims under the Employment Rights Act 1996 were therefore dismissed.

Employment status under employment law can be a relatively tricky – and important – business. Certain categories of employed persons enjoy more rights than others and it can therefore be a crucial issue as to what employment status a person has. For example, “employees” enjoy the right not to be unfairly dismissed and to receive statutory redundancy payments upon being made redundant – workers and the self-employed do not. Workers and the self-employed therefore enjoy very few protections against being dismissed from their employment and these persons often seek to show that they therefore were “employees” – and are therefore able to claim unfair dismissal in the Employment Tribunal. What employment status a person has really depends upon a mixture of fact and law and is generally based upon the “mixed” test espoused in the case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions. This test involves an examination of whether there is the requisite control, mutuality of obligation and need for personal service evidenced in order to support a conclusion that the person was an “employee” rather than a “worker” or an “independent contractor”. These issues can be complicated so it’s normally advisable to take advice from a specialist employment law solicitor.

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