In Braine and others v The National Gallery ET/2201625/18 an employment judge considered whether art experts were workers, employees or independent contractors.
An employment judge (EJ) has held that art experts who worked as educators for the National Gallery were workers when undertaking individual assignments. Between assignments they were neither employees nor workers. The Gallery’s argument that they were independent contractors in business on their own account was unsustainable.
The EJ found that prospective educators undertook training (observing several Gallery talks, attending debriefs and familiarising themselves with pictures) before delivering two tours under observation in order to be appointed to the team. There was no single system for allocation of work: administrators either matched availability supplied in advance through a pro-forma grid or contacted educators to fill gaps in the calendar. There was no penalty for declining work. The educators made themselves available for work that suited their expertise and personal commitments. The Gallery did not acknowledge any obligation to provide work and did not go beyond assurances that it would offer as much work as it could and that it would seek to distribute assignments equitably. The educators and the Gallery could cancel assignments at any stage and for any reason but this rarely happened. The educators wanted to avoid creating problems for the Gallery or for the administrators they depended on for future assignments. There was no right or practice of substitution and no right or practice of swapping assignments between educators.
The educators were required to conform to the Gallery’s stipulations not only in aesthetic or philosophical matters but also in teaching practice and presentation and the Gallery went to considerable lengths to make educators aware of requirements through detailed written guidelines. In addition to being aware of other rules and policies (such as those governing health and safety or child protection), educators were required to enforce them as the responsible representatives of the Gallery. Educators were paid standard fees, set by the Gallery, for each assignment. Fees were authorised for payment against pay claim forms submitted by the educators and made through the payroll, subject to deductions for income tax and national insurance contributions. The deductions reflected HMRC requirements and the EJ noted that HMRC made a binary distinction between employed or self-employed, whereas the issue before the tribunal had three possible answers. Any tips received by educators were surrendered to the Gallery.
Case: Braine and others v The National Gallery ET/2201625/18, 27 February 2019 (Employment Judge Snelson).