The employment status of Visiting Music Teachers in schools is a notoriously grey area. Despite often performing identical roles, employees will have a contract of employment that clearly sets out roles and responsibilities, while self-employed VMTs have terms of engagement that are often vague or implied, with no formal agreements in place. Even if a written agreement with a school states ‘self-employment’, what happens in reality plays a significant role in determining actual status.
VMTs, heads of music and school bursars are often unfamiliar with government regulations. Generally, everyone muddles along, with the smooth running of a music department supported by generous helpings of mutual goodwill. But scratch beneath the surface and there are profound differences between the rights of employed and self-employed VMTs. These are often exposed in disputes between self-employed VMTs and schools.
When things go wrong
While an employee has legal protections and recourse to a school grievance procedure, a self-employed VMT is in a more vulnerable position – particularly if a school demands, paradoxically, that they comply with all the rules of a school employee. If they don't comply, they can be summarily dismissed. But because they're self-employed, they have no right of appeal against unfair dismissal.
For a self-employed VMT to make a claim against unfair dismissal, they first have to win a case at an Employment Tribunal in order to establish that conditions at the school meet the threshold of employed status. To explore this further, we need to establish what self-employment actually means.
Features of self-employment
You can find more information on the HMRC website, but the following list shows the salient features of being self-employed:
- Working under a contract for services, not of service (this means a school itself can't claim it is offering music tuition; only facilitating this provision from a third party).
- Not being subject to control by a supervisor.
- Choosing the fees to be charged and being responsible for all financial planning and management of the business.
- Invoicing clients directly rather than receiving a wage.
- Choosing when, where and how you work.
- Being free to hire a substitute to cover absence.
- A self-employed person is an independent business, responsible for their own success or failure.
A school isn't allowed to exert the control of an employer while avoiding its obligations, such as providing holiday pay and a pension. If most of the above conditions are not fulfilled, a VMT can reasonably claim that they are a de facto employee. But the circumstances around this are not black and white.
The grey areas
Here are some examples which might indicate controlling behaviour by a school, but which are also open to interpretation:
- Timetabling. In theory, a self-employed VMT has control over timetabling; in reality, they have to work around the school day. They might need to avoid games or school trips, or fix lessons for sixth formers. Some schools insist that music lessons avoid clashes with maths or English classes.
- Safeguarding. Schools often require VMTs to complete the same safeguarding training as employees. Schools need to be vigilant and must apply safeguarding protocols across the school site.
- School email. Some VMTs must use a school email address. This helps keep a professional distance between teacher and pupil, and guards against accusations of impropriety. But it might also indicate that you are a member of staff, not a visiting freelancer.
- Substitution. The right to send a deputy to cover a VMT's teaching is likely to be challenged by a school, creating potential obstacles. A school has a duty of care to pupils and, understandably, needs to vet a deputy, who must be DBS-checked and undergo safeguarding training to comply with legal requirements.
- Staff lists. Self-employed VMTs should not be on ‘staff lists’. On the other hand, being so increases a VMT's profile and advertises their services.
- Free meals. Taking up the offer of a school meal, however innocent this sounds, can be used as an indicator of employment. Or is it merely a token of appreciation?
Common areas of dispute
Areas of friction between VMTs and music departments can include rates of pay, room-hire charges, and unpaid assumptions; for example, writing reports or attending concerts or parents' evenings. Let's look at one of these in more detail.
Pay
The right of self-employed VMTs to set their own pay is unambiguous and immutable. It is ironic that this is often the source of disagreement between VMTs and schools, when an increase in rates costs the school nothing.
When you see a job listed as ‘self-employed’ but with a predetermined rate of pay, the school is revealing that it does not understand what self-employment means. Indeed, by dictating the hourly rate, it is likely to be breaking competition law, in effect forming a cartel. But what can you do? The best course of action is to politely point out their mistake and suggest that if they want to impose a uniform rate, they need to employ VMTs, with all the benefits this involves.
At some schools, VMTs collectively set fees. But each VMT is a separate business entity – technically in competition with other VMTs – and so this would suggest that price-fixing is taking place, again by forming a cartel. Teachers could be investigated and prosecuted by the Competition and Markets Authority, though of course this is unlikely (the CMA has bigger fish to fry!).
A self-employed rate should include an allowance for holiday pay (at least 12%) and pension contributions (a teacher on the Teachers' Pension Scheme enjoys an employer's contribution of 28.68%). Therefore, the rate is likely to be a least 40% higher than an ‘employed’ rate.
Reaching a resolution
The vast majority of disputes are based on misunderstandings or ignorance of laws and regulations. Setting these straight should resolve the problem. Schools wishing to assert more control over their VMTs should consider a contract of employment.
Musicians frequently have flexible and itinerant careers, and are used to work coming and going. When suffering a perceived injustice, rather than fighting it, the less stressful option is to walk away. Even if you won a case at a tribunal, would you want to go back and work in a potentially toxic environment? In walking away, however, dubious practices may go unchallenged.
In some instances, to avoid an escalation to a tribunal, schools will offer an out-of-court settlement; for example, for backdated holiday pay. A public hearing can be a high-risk scenario for a school. In addition to potential damage to its reputation, the school could find itself liable for unpaid employers' National Insurance. VMTs may be required to sign a non-disclosure agreement, so that the school can keep a lid on the situation and avoid exposing themselves to further claims.
Legal action
In recent years, the status of people working in the murkier waters of the ‘gig economy’ (interesting how a word borrowed from music is now widespread!) has been tested in the courts. The Supreme Court ruled that Uber drivers were in fact ‘workers’ and therefore entitled to additional rights such as holiday pay. This judgement sets ‘case law’, meaning the precedent can be applied elsewhere.
An Employment Tribunal does not set a precedent, however. Each case has its own unique and nuanced circumstances, which need to be tested individually. A number of VMTs have successfully pursued claims against schools.
A tribunal is a long and expensive process that should be seen as a last resort. Because of a long backlog, it can take up to two years before a case is heard – and it can cost up to £10,000. An Employment Tribunal will only judge on employment status. So, if a VMT wins their case, claims of compensation (for example, for unpaid holiday pay) will be subject to further action – the Employment Tribunal cannot award this.
Regardless of employment status, everyone has legal protection against discrimination and protection of their health and safety.
Contracts
It is essential to have a clear and transparent contract between a VMT and the school, setting mutual obligations that adhere to government regulations. The MU and ISM have templates available that have been agreed with school bursars.
It is a good idea for VMTs to join the MU and ISM. These are professional bodies which can give advice, and even fund a legal claim. School bursars and heads of departments can also seek advice from organisations such as the Independent Schools' Bursars Association (ISBA).
Being well-informed on all sides, and sticking to the rules, is essential for the happy and harmonious running of a music department.
For further information on many of the points discussed above, visit:
- MU–NEU Charter for VMTs: tinyurl.com/42hbpzvt
- MU template for T2 Consultancy Agreement: tinyurl.com/8p75znvt
- MU guide to employment status: tinyurl.com/ykvr4adt
- ISM employment resources: tinyurl.com/yeyjfanm
