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

Above: Stuart Darke Photo: Kirsten Peter Employment status is the gateway to key legal rights at work, but can be a complex minefield for many musicians, especially music teachers. 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.

Employee, worker and genuinely self-employed – what is the difference, and why does it matter? Employees have the strongest legal protection, especially after two years of working. The more control an organisation exerts over you, the more likely you are to be an employee. You can be an employee even if you have no guaranteed hours, and even if your employment contract is not written down. Workers lie in between employees and those who are self-employed. A worker is not fully independent 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. 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 employer’s documents (such as a written contract asserting that the relationship is one of selfemployment) are not the end of the matter. Instead, what matters is how the relationship operates day to day. The way to work out whether someone is likely to be a worker or an employee is to examine all the facts to see how the relationship works day to day. If there is a high degree of control, you cannot send a substitute and you cannot negotiate your own fee then you are more likely to be a worker or employee. 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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