This article first appeared in the Spring edition of the ISBA Bursar’s Review.
Schools engage staff on a wide variety of contractual arrangements (fixed term, zero hours, term time only, to mention just a few), subject to the needs of the school. It is true to say one contract size does not fit all when it comes to fulfilling staffing needs. The status of visiting music teachers, also known as peripatetics, often creates debate in schools. This article looks at the issues surrounding their engagement and status, in particular on a self-employed basis.
Employed or Self-Employed?
The term visiting music teacher (VMT) is shorthand for an arrangement whereby the VMT is engaged by the school, often has no set hours of work and is engaged to provide music lessons as and when required to pupils at the school. VMTs are a valuable part of school life and the educational offering.
A number of schools choose to employ their VMTs. This may suit some but not all owing to the ‘cost’ of employment, such as holiday pay and pension contributions to mention just two. Where that is the case, the usual type of contract utilised is a zero hours contract. The use of zero hours contracts as a valuable tool for employers featured in the Autumn Issue of The Bursar’s Review and a template contract for both employees and workers on that basis is in the ISBA online library.
The Self-Employed VMT
A significant number of schools engage VMTs on a self-employed basis. In this scenario the school and VMT have a consultancy agreement that sets out the terms and conditions which apply to the relationship. The VMT usually contracts separately with the parent to provide the lessons and the billing and payment arrangements are normally made directly between the parent and VMT.
There are complex legal intricacies as to whether a VMT has an employment relationship with the school; it is an essential first step for a school to consider how they wish to engage their VMTs. There are factors that will indicate the relationship is one of employment as opposed to self-employment. HMRC have an online tool with a series of questions which can help decide status; however, the fact that HMRC might regard an individual as self- employed for tax purposes may not be conclusive. Unfortunately, there is still not a set of clear, definitive criteria against which a school may definitely decide an individual’s status.
Factors that Count Towards Self-Employed Status
In deciding if a VMT is truly self-employed, a school will wish to consider what the law considers to be “markers” indicating self-employment and include clauses relating to these within any consultancy agreement with the VMT. Specifically, this includes the question of ‘personal service’, ‘mutuality of obligation’ (a lawyer’s term) and ‘control’.
Personal Service and Substitution
A VMT is often highly skilled and so the question of personal service can be difficult. In order to demonstrate a relationship of self-employment, the agreement will often include a ‘power of substitution’ clause. This provides the VMT with the right to provide a substitute to provide the service in his or her place. This can be helpful in establishing self-employed status, particularly if a substitute is actually used in practice. However, in schools this may not frequently be viable, bearing in mind the nature of the duties provided by the VMT. Parents may (usually) want a particular person to teach their child. That is, however, a matter between the parents and the VMT. It is important that where possible the substitution clause is included in any consultancy agreement.
Mutuality of Obligation
This legal term is really concerned with whether the school is obliged to provide work and whether there is an obligation on an individual to accept it. Relevant factors, which indicate they are self-employed, might be as follows:
1) Is the individual integrated into school life? For example, do they take part in staff meetings or do they appear under the definition of ‘staff’ on the school website or in the school prospectus?
2) Is the individual appraised by the school?
3) Is the individual paid when they do not work? For example, is payment spread across the year and/or do they receive any form of holiday pay?
If the answer to the above three questions is ‘no’, this indicates there is no mutuality of obligation and, as such, hints at a status of self-employment. It is important for a school to look at what happens in practice.
‘Control’ in a school includes the way in which something is done, including the time and the place. The VMT consultancy agreement will often set out the detail of the services being provided (and agreeing them with, for example, the Director of Music) but will not specify detail with regard to the days or hours to be worked. VMTs are likely to enter into practical arrangements directly with the parents, for example regarding lesson timings and payment, and may well write to parents to update or inform them of arrangements. It will be a requirement for the VMT to carry out their duties with a certain level of skill and care in accordance with their professional obligations. If a school wishes to specify certain hours and days, that could be an element of control, which could in turn imply that the VMT is in fact an employee. The more detailed or restrictive the duties that are imposed on the VMT, the more likely that is. Providing the VMT with a copy of the school calendar does not indicate control. Schools may need to be careful when considering any right to ‘control’ some activities, including the provision of reports, lesson observation and the obligation on the VMT to notify the school should there be a formal complaint by a parent.
The provision of reports (and any requirement to attend parent consultations) should be given careful consideration by the school as it may indicate control. Requiring a copy of any pupil report is fine; however, dictating how and when they are to be provided and in what format and if they are sent from the school to the parent, may indicate an element of control.
A consultancy agreement often includes a provision for the school to observe any lesson given by the VMT. In a school (and often where the VMT is alone with a pupil) this may be cited as an essential safeguarding requirement. The observation should not be with a view to monitoring performance, as that would indicate ‘control’.
The agreement may contain a requirement for the VMT to notify the school if there is a formal complaint by a parent against the VMT. To support inclusion of this requirement (and not indicate control), the school would rely on the requirement to deal with complaints in accordance with the school’s complaints procedure as a regulatory matter in accordance with the Independent School Standards Regulations and, as such, it is not an indication of control, but of compliance.
Other Factors to consider including in any Agreement
A Facilities Charge
This can be a matter of debate; however, in order to help support the self-employed nature of a VMT, it is helpful for there to be payment of a facilities charge and for the VMT to supply their own equipment and materials. The facilities charge may of course include the use of any school instruments and it is likely any such charge would be passed on to the parents by the VMT. It does demonstrate some financial risk by the VMT.
A self-employed VMT, unlike an employee, has no implied obligation of confidentially. It is therefore important that if the school wishes the VMT to keep certain information confidential, such as any information relating to the business affairs or finances of the school, any information relating to staff, pupils or family members of pupils, there should be a specific clause within the agreement detailing this.
If the school and VMT agree that it is a consultancy agreement and the position is one of self-employment, the agreement should specifically state this. Whilst not determinative, it is useful to demonstrate the parties’ intentions.
It is usual to have an indemnity in a self-employment agreement with regard to any loss sustained by the school should there be a finding by HMRC that the individual is an employee and not self-employed. However, as payment is purely between the parent and the VMT, this indemnity may not be appropriate. It is a matter for each school to take their own guidance on their particular set of circumstances perhaps from the school auditors who are likely to have a view. If, however, payment is made between the school and the VMT, an indemnity may be appropriate.
Wouldn’t life be simple if VMTs gave individual lessons to pupils and that was all? Of course, in reality, VMTs often help with the school orchestra, concerts, or perhaps providing group lessons to a number of pupils. The need is often not static but is dynamic, changing from year to year. In that scenario the school may wish to pay the VMT direct and any such arrangement may have to sit outside of their usual agreement. If it is ad hoc and irregular it may still be on a self-employed basis (providing the individual VMT can always say ‘no’).
Many self-employed VMTs appreciate the opportunity to work at a number of different schools and not be tied to any particular establishment. Schools may have to consider whether to pay the self-employed VMT to attend any obligatory safeguarding training. This is a matter for each individual school and may mean that if a VMT is teaching at several schools, that they may be required to attend several days training with no ‘pay’.
It is important that a school reviews its use of VMTs on a regular basis to look in detail at what they are doing. If they are more involved in school life than anticipated i.e. running the school orchestra and assisting on a regular basis at school events, such as shows and concerts, then it may be that their status will alter over time from that of a self-employed VMT to that of an employee with all of the obligations that accompany it.