by Mike Kidd
Part 1 – Could Musicians Hail A Ride With The Uber Drivers?
On Friday 19th Feb 2021, the Supreme Court handed down its decision in Uber v Aslam. The case centred around the claim of a number of Uber drivers that they should be paid the minimum wage and receive paid annual leave as workers. Uber had argued that their drivers were self-employed, meaning they were owed no employment rights. The claimants argued that this was bogus self-employment.
The Supreme Court upheld the decisions of lower courts, which had found that the applicants should be treated as workers.
One of the most significant findings in the judgement is the restatement of the principal that tribunals should make decisions about employment status based on the reality of the working relationship, not on labels applied to the working relationship by either party.
What is employment status?
For employment rights, there are three basic categories of employment:
Each category of employment attracts different rights and protections, with self-employment attracting the least, and employment attracting the most.
It’s important to note that employment status isn’t something we can choose based on what’s most convenient, eg for tax purposes. Rather, it is based on the true nature of the relationship between the individual and the organisation. If the true nature of the relationship does not correspond with any written documentation, then Tribunals will disregard this documentation in favour of basing their decisions on the true nature of the relationship. This is one of the principles upheld by the Supreme Court in Uber v Aslam.
The basic test of employment status is determined by Section 230 of the Employment Rights Act. This test defines an “employee” as anyone who works under a contract of employment, whether in writing or verbal. It defines a “worker” as anyone else with a contract to perform work personally for the other contracting party.
So, does the Uber case have any implications for musicians? What if a musician in one of the self-governing orchestras decided to challenge the perceived wisdom of the classical music establishment because of something that has happened that left them without work, or because some other financial loss was imposed on them against their will? How could a member go about pursuing change?
To consider these questions, we need to start by looking at the basic tests used to determine employment status:
- Mutuality of Obligation – is the engager obliged to offer the work to a particular musician and is that musician obliged to accept it? Does this mutuality of obligation exist in a self-governing orchestra? Is there any pressure to accept the work? The individual experience may vary between musicians and there aren’t likely to be standard arrangements. On top of this, contract confidentiality may hide the reality from others. Certainly, with Arts Council England (ACE) stipulating minimum member numbers in concerts, an uneasy truce has developed between collective artistic needs, ACE demands, and the freedom for individual members to decline work with autonomy.
- Control – is the orchestra able to tell the member what to do, when, how and where? If so, there may be a degree of control and the members may be moving towards worker or employee status. In the Uber case, it was found that employment relationships are characterized by subordination and dependency on one hand and control by the employer of working conditions and pay on the other. It is the nature of this hierarchical relationship that can mean that those in such a situation ought to be protected by employment legislation. Perhaps there is an argument which says that with the depression of orchestral musicians’ fees over the last few decades (and the rapid decrease in available work), the scales have tipped out of musicians’ favour, creating a greater degree of subordination and control than previously known.
- Personal service – do members of self-governing orchestras have to complete the work themselves, or can they send a deputy of their own choosing? Do members have an unlimited right to send a deputy or is it limited in any sense? If there are limits then there is a possibility that the relationship has started straying away from self-employment.
Members of self-governing orchestras who are concerned about the implications of the Uber decision should consider these tests and decide if they truly believe themselves to be genuinely self-employed.
It is an unavoidable conclusion that if the test for genuine self-employment is not being met, then you may be a worker or an employee.
Part 2 – Why should members of self-governing orchestras care about employment status?
In order for the “self-governing orchestra” employment model to be questioned, an Employment Tribunal must be given the opportunity to issue a decision in a similar manner to the Uber decision. This requires a member (or members) of a self-governing orchestra to put their head above the parapet and assert that they don’t believe they are genuinely self-employed.
There are probably three key hurdles making that a daunting prospect for any of those members:
- Alarmist rhetoric from the classical music establishment.
We have had it drilled into us for decades that the self-governing orchestras could not survive financially if they were faced with the additional costs associated with employment – the same arguments repeated by Uber in their defence throughout these hearings. Why then, is it the case that every other full time professional symphony orchestra across the UK is able to remain solvent when their musicians enjoy “employee” status? Why is this small group of world-leading orchestras uniquely unable to face these challenges?
Other unions such as Unite the Union, IWGB, GMB, and Prospect, have made it their business to openly challenge bogus self-employment and campaign to support members in such situations. The MU leadership has stated on numerous occasions that they believe “employed musicians” are an anomaly. Certainly, in recent years the MU has largely left the self-governing orchestras to their own devices.
When employment status within self-governing orchestras is discussed, this Manual is often used to suggest that the issue has been resolved in a conclusive manner. However, the fact is that the Manual only provides guidance about employment status for tax purposes, not employment rights purposes (see BEIS 2018 “Employment Status Consultation”, Chapter 10 for more on this)
The employment status structures for tax and rights do not wholly align. For tax, employment status is binary (self-employed or employed) whereas for employment rights, a third status exists (worker). To add to the confusion, Employment Tribunals and HMRC use different tests to determine an individual’s status. The different employment status frameworks are supported by separate pieces of legislation:
|Employment Status for Rights||Employment Status for Tax|
|Employment Rights Act 1996, Section 230||Income Tax (Earnings and Pensions) Act 2003, Section 4|
|Social Security Contributions and Benefits Act 1992|
Most importantly, when questions arise about whether an arrangement constitutes genuine self-employment for employment rights purposes, decisions ultimately rest with the Employment Tribunal – not HMRC.
Tax / Rights
There’s no denying the fact that tax law in the UK is set up in such a way that it appears to be advantageous to be self-employed, and many might question “how much more tax will I have to pay if I stop being self-employed?” The answer to this question will of course vary greatly from individual to individual. Frustratingly though, the question misses the key point that because of the lack of alignment between employment status structures for tax and rights, it it perectly possible to be self-employed for tax purposes, but a “worker” for employment rights purposes!
Whatever the answer is, it doesn’t really tell us much about what the difference in status really means to working life. For a lot of musicians, the rights gained through “worker” or “employee” status would far outweigh the cost of any additional tax.
Here are a few of those rights:
• information about pay, notice and holiday entitlement
• written statement of employment particulars from day one (basic terms and conditions of employment)
• National Minimum Wage
• pension auto-enrolment rights
• protection against unlawful pay deductions
• working hours, rest breaks and a 48-hour week
• statutory holidays
• protection from victimisation for being a union member
• access to Collective Bargaining (this is the process by which trade unions negotiate with employers, on behalf of members)
• right to be accompanied at a disciplinary/grievance hearing
• protection from discrimination
• the right to reasonable adjustments for disabled workers
• protection against detriment for whistleblowing
• possibility of being furloughed under the government’s temporary Coronavirus Job Retention Scheme
• all of the above “worker” rights, plus:
• statutory minimum notice
• protection from unfair dismissal
• implied contract terms such as mutual trust and confidence
• express contractual rights in the employment contract
• reasonable paid time off for trade union reps for union duties and training
• reasonable paid time off for safety rep duties and protection from detriment or dismissal for acting as a safety rep
• time off for public duties
• parental leave and pay rights (maternity and paternity leave and pay)
• statutory right to bereavement leave and pay
• time off for antenatal and adoption appointments and maternity suspension rights
• statutory sick pay
• unpaid parental leave
• unpaid dependency leave
• right to request flexible working
• right to request time off for study or training
• TUPE protection (this provides protection to terms and conditions when an organisation is taken over by another organisation)
• redundancy pay and rights
• medical suspension pay
The debate around this issue often lands on the unsupported conclusion that members of the self-governing orchestras value the degree of flexibility and tax advantages of self-employment above the rights listed. This conclusion, combined with the fallacy that the financial implications of granting the above rights might bankrupt orchestras, leads to a conclusion that it is a good system that works well, and we should leave it alone. But is this a disservice to self-governing orchestras? In 2018, the Government announced their intention to implement sweeping employment reforms in response to the Taylor Review. With landmark employment status cases coming thick and fast over the past few years, it seems inevitable that a change is coming which may prove highly disruptive to the status quo for self-governing orchestras. The opportunity for getting ahead of the curve may be coming to an end.
Is there an appetite to challenge the assumption that this is a good system and that members of these orchestras are better off being self-employed? After all, if a self-governing orchestra did move to a model of treating members as workers or employees – there would be no reason to give up flexibility. As long as the pay, terms, and conditions were set in accordance with employment law, additional flexibility could be maintained within the contract. It happens in many other orchestras.
With the twin issues of the Pandemic recovery and Brexit, it feels that orchestras may be at the precipice of a “race to the bottom”, or at the very least facing further erosion of working conditions. For those self-governing orchestras, without the protections offered by employment rights, it will be all the harder to hold on to the working conditions they enjoyed in the past.
Musicians reading this will understand that those who have won membership of these orchestras have achieved something truly outstanding. But if we hope to return to a landscape in which that membership means a stable and lucrative career, reflective of that accomplishment, we will benefit from moving away from our current unease about organising in the workplace. It is only through organising that the MU can successfully defend musicians’ rights and if recent years have shown us anything – it is that we will only get what we organise for.
Whatever your personal view is upon reading this, if members of self-governing orchestras seek the support of the wider profession in pursuing change, solidarity will benefit everyone. As we rebuild our industry to come back stronger, there is an opportunity to set out an aspirational vision for how things could be. If a change in employment status is part of that aspirational vision, we must pursue that debate with the collective spirit that makes orchestral playing so great.