ISM MUSIC JOURNAL JULY/AUGUST 2022 | LEGAL & BUSINESS
Know your rights – Employment status Stuart Darke, the ISM’s Director of Legal Services, answers some key questions to help you understand the legal rights of musicians and music teachers in their workplaces Employment status is the gateway to key legal rights at work, but can be a complex minefield for many musicians, especially music teachers.
Above: Stuart Darke Photo: Kirsten Peter
To make matters even more complicated, the test used by HMRC to decide whether you are ‘selfemployed’ for tax and national insurance purposes is not the same as the test used to decide what, if any, statutory employment rights you have at work. You can be lawfully paying all your tax and national insurance on a self-employed basis while at the same time being a worker with statutory rights, such as a right to holiday pay or to protection from discrimination at work.
Many musicians operate on a genuinely selfemployed basis and are true freelancers. They run their own businesses, take financial risks in relation to activities, provide their own equipment and set their own hourly rates and other terms of business. These musicians have no employment rights because they are neither employees nor workers. The contract document I have signed says I am a self-employed contractor – isn’t that the end of the matter?
Following the landmark Supreme Court ruling of Uber v Aslam [2021], when deciding whether someone qualifies for statutory employment rights, the Employee, worker and genuinely self-employed – employer’s documents (such as a written contract what is the difference, and why does it matter? asserting that the relationship is one of selfemployment) are not the end of the matter. Instead, Employees have the strongest legal protection, especially after two years of working. The more control what matters is how the relationship operates day to day. an organisation exerts over you, the more likely you are to be an employee. You can be an employee even The way to work out whether someone is likely to be if you have no guaranteed hours, and even if your a worker or an employee is to examine all the facts to employment contract is not written down. see how the relationship works day to day. If there is a high degree of control, you cannot send a substitute Workers lie in between employees and those who and you cannot negotiate your own fee then you are are self-employed. A worker is not fully independent more likely to be a worker or employee. of the ‘employer’ and there is still a degree of control although less than an employee. Workers have some important rights, such as a right to holiday pay, but miss out on important employee rights that are linked to job security, such as protection from unfair dismissal and redundancy, or the ability to access different forms of statutory parental leave.
Employment status – and the rights that stem from that status – is a complex and difficult issue. ISM members with concerns can email legal@ism.org for advice and access a range of resources on the website.
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