National Gallery art experts were 'workers', not contractors or employees

Out-Law News | 15 Mar 2019 | 3:13 pm | 2 min. read

Art experts who delivered talks and lectures at the National Gallery were workers and not independent contractors, and therefore entitled to holiday pay, sick pay and other benefits, an Employment Tribunal has ruled.

However, the Tribunal Judge rejected the experts' claim that they were 'employees' of the gallery. This meant that they were unable to bring unfair dismissal claims, and claims of failure to consult ahead of redundancy, following a restructuring exercise in which their engagements by the gallery were terminated.

The experts were referred to by the Tribunal as 'educators', and the case would be of particular interest to those working in the higher education sector, according to employment law expert Emma Malczewski of Pinsent Masons, the law firm behind Many of the recent cases considering the employment status of freelancers, contractors and so-called 'gig economy' workers have involved private sector employers, including Uber, Deliveroo and Pimlico Plumbers.

"We are finding an increasing number of claimants are seeking to pursue claims where they arguably do not have either employee or worker status, particularly in the higher education sector where roles can be atypical and ad hoc in nature," Malczewski said.

"It is important for universities to be familiar with and understand the working arrangements and commitments of their staff, particularly those engaged on a sessional basis. Reviewing these arrangements and practices now will stand you in good stead in the event that questions are raised in the future," she said.

'Worker' is an intermediate status between that of employees and the genuinely self-employed. It does not carry the same redundancy or unfair dismissal rights as employee status, but workers do have the right to some entitlements such as the national minimum wage under the National Minimum Wage Act and paid holiday leave under the Working Time Regulations.

The National Gallery claimed that the 27 educators involved in the case were neither workers nor employees, but rather independent contractors in business on their own account. They predominantly provided services to the National Gallery's education department, including tours and lectures, school tours and off-site workshops for people with various special needs.

Employment Judge Snelson heard that the educators were fully trained before they were permitted to provide educational services, and subject to continuous observation and assessment. They were not permitted to "assign, transfer [or] subcontract" their services to a third party, but were not penalised for declining work.

From 2005, the gallery paid the educators through its payroll after deducting income tax and National Insurance contributions. However, the Judge said that this did not itself point towards a particular employment status.

After weighing up the evidence, the Judge found that there were "many features of the relationships between the parties which, in my view, demonstrate clearly that [the educators] did not enter into what can sensibly be classified as an arm's length commercial arrangement between businesses".

"This is not to say that every art historian or art expert delivering talks or workshops at the gallery or elsewhere holds the status of a 'worker'. On the contrary, the lead claimants themselves accepted, rightly, that some of their work (within the gallery and elsewhere) fell on the other side of the line. But that merely makes the point that the exercise entrusted to me is fact-sensitive. The fact that the [educators] performed some work as independent contractors on their own account does not militate against the conclusion which I have reached," he said.

That there was "no obligation between assignments to offer or accept work" was "fatal" to the educators' case that they were employees, the Judge said.