Workers - Employees or Independent Contractors?

The issues surrounding the definitions between these different categories of people continue to roll in. Most recently, the National Gallery has been the subject of their art experts claiming that they were workers. An employment judge has held that the art experts who worked as educators for the National Gallery were workers when they undertook individual assignments. Between those assignments, they were not employees nor workers. The Gallery’s argument that they were independent contractors in business on their own account was in the court’s opinion unsustainable.

All of these cases are going to be specific on their facts but in this case the educators undertook training, observed several gallery talks and attended debriefs before delivering two tours under observation in order to be appointed to the team. The educators made themselves available for work that suited their expertise and personal commitments and there was no penalty for declining work. The Gallery did not acknowledge any obligation to provide them with work and did not go beyond assurances that it would offer as much work as it could and distribute the assignments equitably between the group. Either side were able to cancel assignments at any stage and for any reason but this rarely happened. In the contract there was no right and in practice there was no actual substitution and there was no right to swap assignments between educators.

The educators were required to confirm to the Gallery’s stipulation in relation to the teaching practice and presentation and there were detailed written guidelines. Although the educators were paid standard fees for each assignment and these were authorised for payment against pay claim forms submitted by the educators, they were paid through the payroll and they were subject to deductions for income tax and national insurance.

The advice on this topic is that if you are going to have a non-standard arrangement you need to make sure there is contractual documentation in place making it absolutely clear. Once that contractual documentation is in place it should be adhered to. A document will not protect you if it does not reflect what happens in reality.