In the case of Braine and others v The National Gallery an Employment Tribunal (ET) has held that art experts who worked as Educators for the National Gallery were workers and not independent contractors as argued by the Gallery.
The ET held that the Educators only had the status of worker when undertaking an actual assignment and when they were in between assignments they were neither employees nor workers.
Some of the key points which suggested worker status included:
- Prospective Educators undertook training.
- The Educators were required to comply with the Gallery's stipulations in teaching practice and presentation and the Educators were provided detailed written guidelines of the requirements on this.
- The Educators were required to enforce the rules and policies of the Gallery.
- The 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.
- Any tips received by the Educators were surrendered to the Gallery.
- There was no right to substitute.
There were other points that did not give rise to a suggestion of worker status such as the ability to decline work without penalty and the fact that the Gallery had no obligation to provide work and only ever said that it would offer as much work as possible and the fact that the Educators could cancel their assignment at any time. However, ultimately the ET decided that the Educators were workers.
This is another example of the court’s willingness to extend employment rights to those previously considered ineligible and this time this has arisen in the public sector as opposed to the private sector. It will be interesting to see if this causes a surge of similar claims from other areas of the public sector.