Mr L MacDougall and Others v The Highland Council: 4103916/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4103916/2025Venue AberdeenHearing 2 and 3 March 2026
Between
Mr L MacDougall and OthersClaimantThe Highland CouncilRespondent
Before
Employment Judge SmithDate 15 April 2026
JUDGMENT
[1]The claimants were not “employees” of the respondent. Accordingly, their claims of unfair dismissal and wrongful dismissal are dismissed.[2]The claimants were “workers” of the respondent during the times they taught lessons only. Accordingly, their holiday pay claims and claims in respect of a failure to provide a statement of employment particulars may proceed.
REASONS
[1]The claimants presented claims of unfair dismissal and wrongful dismissal to the Tribunal, as well as for holiday pay (pursued as a wages claim under s.13 Employment Rights Act 1996 or, in the alternative, a freestanding claim under the Working Time Regulations 1998) and contingent claims in respect of a failure to provide a statement of employment particulars.[2]This preliminary hearing took place over two days and concerned the legal status of the claimants vis-a-vis the respondent, namely whether they were “employees” or “workers” of the respondent. The Tribunal would only have jurisdiction to entertain the full range of claims if they were found to be “employees”, and if they were found not to be, the holiday pay and statement of particulars claims as “workers”. Of course, if the claimants failed to prove that they came within either category, all claims would necessarily have to be dismissed as the Tribunal would have no jurisdiction to hear them.[3]I was presented with a productions file in two volumes, spanning some 680 pages. I was taken to a very limited number of those documents during the course of the evidence.[4]I heard oral evidence from the claimants themselves, and from Mr Michael Vass (Director of the National Centre of Excellence in Traditional Music; “the Centre”) on behalf of the respondent.[5]The claim had originally featured two respondents: the local authority, and the Centre. On the second day of the hearing the Centre was removed as a respondent under rule 35 by the consent of all parties, on the basis that the Centre did not of itself have a separate legal personality. The preliminary hearing proceeded as against the local authority as the sole respondent. Findings in fact The respondent and the National Centre of Excellence in Traditional Music[6]The respondent is the local authority for the Highland area and amongst its competencies is education. One of the schools run by the respondent as part of its responsibilities towards education is Plockton High School.[7]Next to Plockton High School there exists something called the National Centre of Excellence in Traditional Music. Whilst the Centre does not have a separate legal personality of its own, it has a distinct purpose. That purpose is – as the name suggests – to provide a high standard of musical education, specifically within the genre of Scottish traditional music, to children from all over Scotland.[8]It is one of four such National Centres of Excellence in Scotland, and of them the only one specialising in traditional music. It is funded through a cultural grant by the Scottish Government, and admission to the Centre is selective depending upon a child’s proficiency in a traditional instrument or vocals. The children studying at the Centre undertake their general education at Plockton High School but their musical education is carried out through the Centre. As the Centre caters for the most able young traditional musicians from across the country, many of the children attending the Centre do so on a residential basis given Plockton’s relatively remote location in the west. The claimants and their business models[9]The claimants are all professional musicians. The first claimant (Mr MacDougall) is a piper and whistle player; the second claimant (Mr Gunn) is a fiddle player, and the third claimant (Mr Brechin) is an accordionist. 10.The claimants all run their own businesses, as sole traders in their own right (rather than through limited companies) but encompassing many different aspects of professional music: 10.1. In the case of the first claimant, he is a touring musician and plays on tour as a member of at least two bands, but also with bands of whom he is not formally a member and also in his own right as a solo artist. He has been commissioned by third parties to perform on movie and television soundtracks, and has performed on television shows themselves. He is a music producer with considerable expertise in music technology, a composer, and occasionally a presenter on radio shows on BBC Radio Scotland. 10.2. In the case of the second claimant, he is also a touring musician and plays on tour as a member of at least two bands in addition to his own. He is also a recording artist and session musician (by which is meant that he is paid, by the job, to play in concerts or on recordings). He is involved in music production as a mixer and through mastering. He too is a composer whose works have been recorded and performed by other musicians. 10.3. In the case of the third claimant, he is also a touring musician and plays on tour (often internationally) as a member of at least two bands. He has his own record label and also undertakes recording work. 11.All three claimants were engaged by the Centre (and therefore legally, by the respondent) to undertake teaching work. For all three, that teaching work mostly involved teaching individual pupils instrumental lessons on a one-to-one basis, but from around 2018 it also involved the third claimant teaching a separate course called Creative Musicianship, and the second claimant teaching a separate course known as the National Certificate course. 12.I shall return to the work the claimants did for the respondent, and these additional courses, later in this judgment, but in addition to the teaching work they undertook under the auspices of the Centre all three claimants undertook teaching work outside of it, whether as independent one-to-one instrumental teachers or as part of group teaching. This was particularly evident in relation to the third claimant, whose teaching work was also done at independent workshops and a wide variety of fèisean (gatherings), but also under the auspices of the Royal Conservatoire of Scotland and Newcastle University, but both the first and second claimants operate under a similar model. 13.The claimants account to HM Revenue and Customs for their own tax liabilities. Each of them confirmed that they are taxed on their overall profits taken from their combined sources of income, including anything they earned from the respondent. The first claimant estimated that between 40% and 60% of his income came from his engagement by the respondent. The second claimant put his own estimate at 65% to 70% “at its busiest”, which suggested that the figure would be lower other than at the busiest times. There was no equivalent evidence from the third claimant on this matter and I therefore made no finding. 14.Some letters of engagement were shown to me, from 2024/25 going back to 2011/12 in some cases. In all of them a sentence (sometimes in bold type) reads, “All tutors will be regarded by HMRC and the Highland Council as being selfemployed for tax purposes, and are therefore liable for their own Income Tax and National Insurance arrangements”. Consistent with my finding in the above paragraph, this statement was reflective of the reality of the situation when it came to the claimants’ tax affairs throughout their engagements with the respondent. Indeed, the third claimant described himself in evidence as being “self-employed”. The engagement of the claimants[15]The second and third claimants commenced work at the Centre from the start of the academic year 2011/12, but the second claimant had in fact been attending at the Centre on the odd occasion since 2004, as a cover tutor and the third claimant had also attended long before 2011. The first claimant commenced work at the Centre in 2015, but he too had occasionally attended at the Centre since the previous year, in order to undertake specialist workshops on music software. It is not disputed that those letters broadly set out a genuine expression of the parties’ understanding at the relevant times. 16.The claimants’ engagements were always for the “academic session” in each year, commencing in mid-August and ending in late June, although the precise dates varied depending on the way each academic year fell. New letters of engagement were sent to them, usually in the July preceding the start of each academic year. There were some typographical errors in terms of the dates on certain of these letters, but these were of no consequence as it was the common understanding of the parties that their engagements would be for the forthcoming August-to-June “academic session”. 17.I accept that the claimants expected to be invited back in each subsequent academic year, and that this consistently happened. However, this was on the basis of goodwill and mutual understanding; there was no explicit guarantee that it would happen, and at the end of the year 2024-25, it did not happen as the Centre informed each of them that they were not being invited to return for the academic year 2025-26. Working hours[18]As part of their letters of engagement there was a section headed “Working Hours”. Despite that wording this section did not, however, set down what the claimants’ working hours would be. The text underneath that heading instead set out the term dates for the forthcoming academic year, and identified weeks in which there would be no teaching, including in particular the special case of the month of May, in which there would be no teaching for pupils in school years S4, S5 and S6 due to them being on study leave ahead of examinations. 19.The times the claimants spent teaching were arranged by the respondent (initially by Ms Rhona Sharp, secretary) according to the particular day of availability in each term week the claimants generally wanted to work. The claimants would put forward their preferred weekday generally a term in advance; Ms Sharp would then arrange for the pupils to have their individual instrumental lessons on that weekday, and then confirm the chosen day to the claimants. 20.Generally, the claimants’ preferences were always accommodated and the process was initiated by them around their other professional commitments and engagements, as per their business models. They were not dictated to by the respondent; on the contrary, the claimants could and did express preferences and were always allocated what they wanted, around their other business commitments. “Substitution”[21]The earlier agreements and those from 2024/25 bear a clause regarding cover, which is identically worded save for the appearance in the earlier versions of the sentence “You may be asked from time to time to cover teaching outwith your main discipline, subject to the usual remuneration”. The otherwise identical clause across the agreements I was shown reads: “In the event that you are unable to attend at any time, you are asked to inform the Director as soon as you know that you are unavailable in order that cover can be arranged. Any assistance you can provide in arranging cover will be greatly appreciated, and if you have any preferences as to who should cover for you, please make them known to me. The Centre will always try to be as flexible as possible with regard to timetabling arrangements, but it is very useful if tutors can give as much notice if they will not be able to attend.”[22]This clause anticipated situations where the claimants might not be able to attend the Centre and perform work. This did in fact happen, as I shall come on to describe. It also anticipated what might need to be done in terms of arranging cover in their absence, and provided for the claimants to have a great deal of influence on that matter. 23.The whole point of the Centre is that its children have the opportunity to learn from the best musicians in its specific field, but of course any tutor working within the Centre would have to have been vetted through Disclosure Scotland’s Protecting Vulnerable Groups (PVG) scheme given that they would be working with children. Any substitute tutor would also have to be PVG-approved and the respondent would have a duty to veto any potential substitute who did not have that approval. 24.I pause here to note that the “talent pool” of traditional musicians from which the respondent could draw to cover individual tuition of the calibre required would therefore be, on the balance of probabilities, relatively small in comparison to an equivalent pool of (for example) plumbers. It would be smaller still because of the requirement for PVG vetting. As a consequence, the reality was that the individuals who could substitute for the claimants would be known to them as well as to the Centre Director, through their wider work within the traditional music scene as well as for their work at the Centre. In essence, were a substitute required to cover for any of the claimants – as they sometimes were – it would be immediately evident to both the claimants and the respondent whom the substitute would be. 25.This being the case, there was no real need for a formal process of selecting a substitute on either side or indeed a power reserved to the claimants under the contract: consensus dictated whom the substitute would be, and as a result the process was generally self-selecting by reason of the substitute’s proficiency with their instrument, experience as a traditional musician, their reputation, and their PVG-vetted status. The cover clause referred to above was reflective of this situation. The power of veto the respondent had was in practice only limited to excluding those who were not PVG-vetted. 26.This is how things worked in practice. Sometimes the claimants could not attend the Centre on their allocated day, for various reasons including inclement weather or transport difficulties but also during the Covid-19 pandemic (when teaching generally moved online) or when other professional commitments took precedence. One example of this was the time when, within the last couple of years, the second claimant had to have time off due to ill-health. The obvious substitutes were the other fiddle players working at the Centre, who absorbed his lessons in addition to their own. Whilst the situation did not arise through his own ill-health, when the first claimant was absent his lessons were absorbed by other tutors. 27.Another example concerned the third claimant, who explained that if he went on tour (as he often does, around Europe and the wider world) the respondent would make arrangements to put in place a replacement accordion tutor to cover the lessons he would otherwise have been teaching. This happened on at least one occasion when the third claimant went on tour, and another accordionist (Mr Blair Douglas) did cover his lessons for him, by arrangement with the respondent. Mr Douglas was also the obvious candidate to substitute for the third claimant, and indeed the third claimant acted as substitute for Mr Douglas on the occasions when he was unavailable. This, however, was not an example of the third claimant being unable to do the work; it was an example of him being able to choose which work to carry out, with matters of priority being entirely for him to decide. All three claimants were in this position. Remuneration[28]The arrangements for payment to the claimants changed in recent years. Originally (as was evident from their earliest letters of engagement) they would be paid a flat fee depending on the number of pupils they would have to teach. In 2011 those fees were £125 for one to three pupils, £187.50 for four to six, £250 for seven to nine, and £312.50 for nine to twelve. However, ahead of the 2024/25 academic year the payment regime changed. Flat fees were replaced with per-lesson rates of £40 per lesson. 29.In addition to those payments, the claimants would be entitled to be paid for “group work”, if they were involved in it. In 2011 that was paid at an hourly rate of £25, and by 2024 that had increased to £50 per hour. It was unclear to me whether the claimants did work which came within this definition, however. Whilst the hourly rate changed over time, the “group work” payment regime did not. The same was also true of an entitlement to claim travel expenses/mileage at the usual HMRC rates. The claimants were also entitled to be paid a flat fee for report writing, plus an additional flat fee for each report they actually wrote. 30.Whilst the rates of remuneration were set by the respondent, they were set with regard to minimum rates published nationally by the Musicians’ Union (MU), the representative organisation of professional musicians. Of course, the MU’s minimum rates were not binding on the respondent but they were generally followed and the respondent’s rates were sometimes slightly in excess of the MU’s rates. The understanding between the parties was that the respondent would at least meet the MU rates, even though they were not formally bound. 31.Under the terms of their letters of engagement the claimants were to invoice the Centre for their services, as a condition of being paid. The relevant clause also mentioned that forms for this purpose were available from Ms Sharp. Based on the evidence given by all three claimants and by Mr Mike Vass (currently the Director of the Centre) for the respondent, there was something of a dispute about who was responsible for what in practice. 32.Giving evidence for the respondent, Mr Mike Vass stated that since he took over as Director of the Centre in October 2023, he had required the claimants to submit invoices themselves, and he explained that this was necessary so that the information could be processed through the respondent’s procurement software and then payment could be approved by him. 33.The claimants broadly agreed that this is the regime that was followed from that time, but one disagreed that this is what was required in the years preceding Mr Vass’ tenure. The first claimant stated that when he first started Ms Sharp would simply prepare the invoices herself and matters would all be sorted out by the respondent, essentially without him needing to take any particular steps himself. However, the third claimant stated that he was the one required to submit an invoice in the time before Mr Vass became Director; Ms Sharp knew what hours and mileage he had worked and would complete the invoice to “save me the time” and that she did so out of kindness. 34.In my judgment the evidence shows – and I therefore find – that at all times prior to and during the Directorship of Mr Vass, the formal requirement to submit invoices for payment always rested with the claimants. They were, however, helped in doing this by Ms Sharp out of her own personal goodwill towards them. That was not an assumption of formal responsibility by the respondent but was instead consistent with the personal kindness the third claimant described on the part of Ms Sharp and the generally collaborative environment that existed within the Centre, amongst those who attended there. The work[35]In terms of the instrumental teaching work the claimants carried out, I find that they had an exceptionally high degree of freedom with which to teach the pupils. In line with the purpose of the Centre as described above, the claimants were invited to teach there because of their exceptionality as musicians within the traditional music genre, on their specific instruments and with their expertise in music production and technology. Indeed, the third claimant described the extent of the freedom as “complete”, which appeared to me to be a fair description. 36.Unlike what may be described as purely academic subjects, there is no set curriculum for traditional instruments which could otherwise have fettered their ability to teach the pupils. The lessons the claimants delivered were crafted by them around the abilities of the individual pupils at their respective stages of musical development, with the claimants themselves being the predominant judges of what teaching ought to come next in order to further such development. They brought their own materials for this purpose. In addition, the pupils themselves would have input into their own musical development and would be able to make certain choices of their own, irrespective of the recommendations of the claimants. 37.In addition to his instrumental teaching, the third claimant taught something called Creative Musicianship. This was not a separate course but an alternative to individual tuition on a second instrument (many of the pupils at the Centre learn more than one instrument). There is no set curriculum for the Creative Musicianship option and in common with his instrumental teaching, the third claimant had an exceptionally high degree of freedom with which to teach the pupils who selected Creative Musicianship as an option given his professional position, and was entirely in control of what each lesson within that option would involve for the individual pupil. The third claimant tended to teach Creative Musicianship because he had greater scope to do so, there being fewer accordion players than (for example) fiddle players amongst the children at the Centre. 38.Whilst there is a syllabus for the individual teaching done by the claimants, on the evidence before me there were three key findings I have made about it. The first is that the syllabus was not set by the respondent but by the Scottish Qualifications Authority (SQA). My second finding is that the syllabus itself is in general a set of competencies that the pupils must meet in order to achieve a particular qualification. My third finding is that in relation to the specific instruments taught by the claimants, the syllabus itself is in no way prescriptive about how the pupils should be taught. That naturally remained the exclusive province of the claimants, within their areas of individual expertise. The role of the claimants was to best enable the pupils to meet the standards set for them by the SQA. 39.Under the 2024/25 agreements the claimants were “asked to fill in a brief weekly tuition record (red folder) of the work covered in the lesson and the work to be done by the student for the next lesson”. The same wording appears in the earlier versions, but what follows that sentence does not. In the 2024/25 agreements the following sentence is expressed in bold type and reads, “It is very important that these records are maintained accurately, as they are accessed from time to time not only by the students but also by external inspectors”. There also existed green folders, but these were the pupils’ own notes as both the second claimant and Mr Vass broadly agreed in evidence. 40.In my judgment, the claimants were in reality required by the respondent to complete the red folders, albeit for the dual purpose described in the later letters of engagement. However, doing so was not an onerous task and in reality, keeping a tuition record of the kind described would be a component of teaching one-to-one instrumental lessons generally, irrespective of the setting. It was part and parcel of the teaching the claimants were engaged by the respondent to do, in the same way as if they were engaged independently. 41.One separate course offered by the respondent was the National Certificate course, as part of which the first and second claimants undertook teaching. That was not an individually taught course, but group based. As the second claimant explained (and I found) this course was taught on Thursdays and occasionally on Wednesday afternoons, and involved teaching aural skills, solo performance skills and sound engineering, amongst other things. However, the syllabus for this course was also determined by the SQA and not the respondent, because it would be the SQA who would ultimately award qualifications to the pupils. That syllabus was not prescriptive about how the claimants should teach the pupils undertaking the National Certificate course, which remained at all times the exclusive province of the claimants. 42.As its name suggests, the Centre is selective in the pupils it accepts. To this end, the respondent organises auditions for those wishing to be admitted to the Centre. The claimants all attended pupil auditions and, in short, that involved them being members of a panel whose task it was to decide whether a particular child met the required standard for admission for the forthcoming academic year. To this end, the claimants would exercise their entirely unfettered professional judgment, notwithstanding the fact that the ultimate decision on admissions lay with the respondent. Place of work[43]The Centre itself is located in Plockton and many of the pupils at the Centre attend on a residential basis, given that their homes can be much further afield and Plockton itself is relatively remote. Naturally, there was an expectation that the work the claimants were engaged to do would generally be carried out at the Centre itself. 44.It was not, however, a rigid expectation. All three claimants accepted that they had taught lessons remotely, either from their main bases or from locations whilst away on tour. This had been particularly the case during the Covid-19 pandemic when much teaching had moved online, but that was by no means the only time when the claimants had taught online. Touring commitments accounted for some online teaching (particularly in the case of the third claimant), but so did inclement weather (particularly in the case of the first claimant, who is based near Glasgow but does not drive and is therefore reliant on public transport: a one-way journey from his home to Plockton is more than five hours via train, with a change in Inverness). 45.Whilst the general expectation was that the claimants would attend to teach in Plockton (and accommodation was arranged for them so that that could happen), the ultimate decision-makers about whether to actually attend were the claimants. They could, and sometimes did, decide that they would teach remotely if another professional commitment was deemed to take priority. The respondent could not prevent them from doing so, and to that extent the claimants had a veto. In my judgment, the reason why the claimants generally did attend Plockton was not because of an instruction that they must do so issued by the respondent, but drawn from their own musical integrity: their justified feeling was that remote lessons are not an equivalent to in-person lessons, as one cannot truly hear and appreciate the nuance of the music created. 46.The Centre organised “tutor meetings”, usually two per year with the first just before the start of the academic year. The claimants generally attended these meetings (including, during the Covid-19 pandemic, remotely). The claimants were unanimous in stating that their attendance was not compulsory, but it was encouraged. 47.The character of these meetings was not, however, what one would understand to be a traditional “team meeting” in the workplace: it was more of an informal gathering where the Director would provide some information about developments at the Centre but where the individual tutors would share ideas and collaborate musically (the former and current Directors are themselves highly regarded traditional musicians, and would themselves contribute musically). The meetings were described by the third claimant – fairly, I found – as “very jolly” - and in my judgment they were properly to be regarded as a means of generating a creative spirit for the year ahead. 48.The later letters of engagement expressly stipulated that Centre (legally, the respondent) could not tell the claimants where they had to work, because they were regarded by it as self-employed and to do so would be inconsistent with that status. None of the claimants put forward evidence to the contrary, i.e. that they had ever been required to work at a particular location, whether before or after the inclusion of this passage in the letters. My findings in the preceding paragraphs are consistent with this being reflective of the true position throughout. Integration[49]As mentioned earlier in this judgment, the Centre is based next to Plockton High School, albeit in a separate building next door. It was not suggested by the claimants that they were employees/workers of the respondent through any connection to the School, only through their connection with the Centre. 50.Whilst its pupils undertake their non-musical education at Plockton High School, the Centre is separate to it both physically and in terms of how it publicises itself to the world. The Centre has a website of its own, and although its web address gives the name plocktonmusicschool.com, that is something of a misnomer as the Centre uses the title “National Centre for Excellence in Traditional Music” in all the communications I was shown. 51.On the website there are separate sections for “Staff” and “Tutors”. Mr Vass, as an employee of the respondent in his capacity as Centre Director, appeared on the former; the claimants all appeared on the latter. As might be expected, the profiles of the claimants set out their expertise and a potted career history, but also set out much of the independent work they did as professional musicians, to which I referred in the earlier part of this judgment. 52.The existence of separate sections on the website indicated to me that whilst there was an association between the Centre and the claimants (and one which they greatly valued) the independent observer would conclude not only that the claimants – as tutors – were in a distinct category from the Centre’s employees but that they were seen as such by the Centre itself. Also, given the content publicised on the website in respect of the claimants specifically, in my judgment the independent observer would conclude from it that they were “freelance” musicians with varied musical interests and businesses of their own. 53.The claimants were all given Centre email addresses, with the suffix “plocktonhigh.org.uk” included. However, the evidence I was shown demonstrated that by email they were usually communicated with using their own personal or business email addresses, with the Centre address more often being used as a subsidiary address only (it was not explained why). Indeed, the email addresses used by the claimants in the communications I was shown indicated business use: in particular, the second claimant used an address with the suffix “gordongunn.co.uk”, and the third claimant used his record label address “brechin-all-records.co.uk”. 54.Naturally there would be a degree of integration between the claimants and the Centre: this was evident from the collaborative spirit between the musicians at the centre and the desire on their part to attend the tutor meetings I have already described. It is also correct that the claimants’ aspirations for the pupils they taught aligned with those of the Centre: everyone was working together to give the pupils the best chance of success with their musical development. However, in organisational terms I find that the degree of integration was relatively low and that the boundaries that existed were respectful of the fact that the claimants were all independent musicians with various other professional interests. Indeed, that was the point of having the claimants come to the Centre to teach in the first place. The law “Employee” status 55.Section 230 Employment Rights Act 1996 provides the statutory definition of “employee”. It is reproduced as follows: “230 Employees, workers etc.(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.”
The law
[56]On the question of who meets the definition of “employee” there is no single legal test or exhaustive list of factors that are determinative, but the following cases are usually of assistance: 56.1. Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 1 All ER 433 (High Court, Queen’s Bench Division). Whilst describing a contract of employment (“contract of service”) and its parties (“master” and “servant”) in the language of the period, McKenna J set out three key considerations that have withstood the test of time: “A contract of service exists if these three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.(iii) The other provisions of the contract are consistent with its being a contract of service.” 56.2. On the issue of personal service – “he will provide his own work and skill” – the case of Cotswold Developments Construction Ltd v Williams [2006] IRLR 181 (EAT) set out four tests that would generally determine whether the degree of personal service essential to an employment relationship was present: “… the central questions: (a) was there one contract or a succession of shorter assignments? (b) if one contract, is it the natural inference from the facts that the claimant agreed to undertake some minimum, or at least some reasonable, amount of work for [the employer] in return for being given that work, or pay? (c) if so, was there such control as to make it a contract of employment so as to give rise to rights of unfair dismissal, as well as a right to holiday pay? (d) if there was insufficient control, or any other factor, negating employment, whether the claimant was nonetheless obliged to do some minimum (or reasonable) amount of work personally?” 56.3. On the issue of control – “control in a sufficient degree” – the case of White & another v Troutbeck SA [2013] IRLR 949 (England and Wales Court of Appeal) reminds Tribunals that they must assess “the cumulative effect of the totality of the provisions in the agreement and all the circumstances of the relationship created by it.” 56.4. Also of relevance is the degree to which the individual is integrated into the organisation. In Stevenson Jordan and Harrison Ltd v MacDonald and Evans [1952] 1 TLR 101 the Court of Appeal highlighted a critical distinction, stating that “Under the contract of [employment] a man is employed as part of the business, whereas under a contract for services his work although done for the business is not integrated into it but only accessory to it.” 56.5. The Tribunal should also consider the economic reality of the situation. A useful question for the Tribunal to answer – as approved by the Privy Council in Lee v Chung and Shun Shing Construction and Engineering Co Ltd [1990] IRLR 236 – is, “Is the person who has engaged himself to perform these services performing them as a person in business on his own account?”[57]As to the weight to be attached to any agreement between the parties on the matter of employment status, in Young & Woods Ltd v West [1980] IRLR 201 the Court of Appeal stated that the label the parties attach is a factor to take into account but it is not determinative: “It must be the court's duty to see whether the label correctly represents the true legal relationship between the parties in that case as in every other.”[58]Claims of wrongful dismissal are contractual claims but may only be pursued in the Employment Tribunal by “employees” by virtue of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994. There is no equivalent to s.230(1) Employment Rights Act 1996 in the Order itself (or indeed in its parent statute, the Employment Tribunals Act 1996) but the legal tests for establishing whether an individual was an “employee” or not are common to the contractual and statutory jurisdictions. “Worker” status 59.Section 230(3)(b) of the Employment Rights Act 1996 provides the definition of persons known as limb (b) “workers”. Limb (a) “workers” are those who worked under a contract of employment (which the claimants also claim they are), but a person is a limb (b) “worker” if they are: “an individual who has entered into or works under… any other contract, whether express or implied (and if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual…”[60]In Uber BV & ors v Aslam & ors [2021] ICR 657 the Supreme Court held that the determination of “worker” status is a question of statutory interpretation, not contractual interpretation. The issue for the Tribunal is whether the claimants were within the category of persons Parliament intended to have the rights and protections associated with “worker” status, with regard to the written agreement but also to the conduct of the parties, any other evidence, and the purpose of the legislation. 61.An obligation to provide personal service is an essential component of s.230(3)(b), as set out above (and it is also relevant to the “personal service” element under “employee” status). When the case of Pimlico Plumbers v Smith reached the Court of Appeal ([2017] IRLR 323) the Master of the Rolls (at paragraph 84) summarised the relevant principles relating to personal service and the effect of clauses permitting the use of substitutes (“substitution clauses”). That summary was not interfered with by the Supreme Court when it heard the subsequent appeal, and it is reproduced thus: “In the light of the cases and the language and objects of the relevant legislation, I would summarise as follows the applicable principles as to the requirement for personal performance. Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.” 62.In Bates van Winkelhof v Clyde & Co LLP [2014] IRLR 641 (Supreme Court) Baroness Hale of Richmond highlighted a distinction between two categories of people who may be described as “self-employed” (at [25]): “Second, within the latter class, the law now draws a distinction between two different kinds of self-employed people. One kind are people who carry on a profession or a business undertaking on their own account and enter into contracts with clients or customers to provide work or services for them. The arbitrators in Hashwani v Jivraj (London Court of International Arbitration intervening) [2011] UKSC 40, [2011] IRLR 827 were people of that kind. The other kind are self-employed people who provide their services as part of a profession or business undertaking carried on by someone else. The general medical practitioner in Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005; [2012] IRLR 834, who also provided his services as a hair restoration surgeon to a company offering hair restoration services to the public, was a person of that kind and thus a “worker” within the meaning of s.230(3)(b) of the 1996 Act.”[63]An Employment Tribunal may conclude that substitution clause does not reflect the reality of the working relationship, and disregard it (Autoclenz Ltd v Belcher and ors 2011 ICR 1157, Supreme Court). 64.Where an individual is subject to a degree of control by the putative employer, they may qualify as a s.230(3)(b) “worker”. The point is that if the employer has such a degree control over the individual’s activities it might indicate that the relationship was one of them providing personal service. In those circumstances the individual may well be a “worker” even if the degree of control is not to the extent of that applicable to “employees”: see Cotswold Developments, (c) and (d) (above). Analysis and conclusions[65]Both parties made oral submissions at the conclusion of the hearing, and I have borne them in mind. Where necessary I shall refer to them, but it has not been necessary to rehearse them here in full. Were the claimants “employees” of the respondent? 66.There can be no doubt that there were contracts in existence between the respondent and each of the claimants from time to time. These were contracts that existed for the duration of each “academic session” and each letter of engagement expressly provided for an end date which was commensurate with the close of the school academic year. There was no suggestion that this was unreflective of the reality, and it was certainly logical given that the claimants were engaged to teach school-age pupils. On the facts I have found, the claimants were engaged on a series of contracts which were punctuated by gaps reflecting the usual school summer holidays. 67.In the context of “employee” status under s.230(1), the question for the Tribunal is then whether this contract was a contract of employment, and in answering this question I have considered the matter in view of the authorities I have cited above. 68.The fact that the duration of the claimants’ contracts reflected the academic year and that there was a steady stream of them over a number of years in each claimant’s case is relevant but it is not determinative. Looking at the succession of contracts as a whole, I have decided that there was no overarching contract of the kind envisaged by Cotswold Developments and that instead, the claimants’ engagements were more accurately characterised as a series of assignments albeit ones of some length in each individual instance, based around the usual Scottish academic year. 69.I have reached this conclusion for two main reasons. The first is that there was no guarantee given by the respondent (explicitly or otherwise) that the claimants would be invited back to work at the Centre in each successive academic year, and indeed for the year 2025-26 they were not invited back. That they were consistently invited back until that point was, in my judgment, better explained by the genuine feelings of goodwill held towards them by the Centre and its leadership and a recognition, within a relatively small musical community, of the claimants’ excellence as musicians. 70.The second reason regards remuneration and the work done under the contract. Even though the fees regime changed in recent years from a per-pupil basis to a per-lesson basis, the claimants were not paid by the respondent outside of the times they spent teaching (whether that be instrumental teaching, group work or as part of the Creative Musicianship or National Certificate offerings). Furthermore, they could not reasonably have expected to have been paid in between contracts or indeed during school holidays, given that pupils would not have been undertaking lessons at those times. In my judgment, the only factor that might otherwise have linked the separate contracts was the claimants’ expectation that a subsequent contract would follow, but for the reasons I have explained, that was not enough to amount to an overarching contract between the parties. 71.I then turn to the degree of control, upon which Mr Morgan placed much weight in his submissions. Stepping back and considering the matter in its totality and cumulative effect (as per White), the degree of control in the claimants’ cases came nowhere near establishing the requisite level of personal service and thus the realms of “employee” status, in my judgment. My core findings all pointed away from control being of a sufficient degree to support this assertion: 71.1. The claimants were not controlled in where they had to work and they were able to choose not to attend the Centre if they decided that other commitments prevailed, including the tutor meetings; 71.2. Whilst their teaching days had to be within the school term-time (“academic session”), these were arranged by the Centre around the claimants’ own commitments rather than as a top-down instruction: their independence was recognised and accommodated in that important respect; 71.3. In terms of the teaching itself, the claimants had complete freedom and the only role of the Centre was to monitor the pupils’ progress, not the tutors or their methods. The existence of a syllabus, particular standards and the red folders were at the instigation of the SQA and not the respondent, and that applied across individual instrumental teaching (including Creative Musicianship) as well as the National Certificate teaching. I rejected Mr Morgan’s submission that the Centre Director was responsible for supervising the claimants, as that was not what the evidence showed; 71.4. In the context of professional music and the independent business interests the claimants all had it appeared to me that it would have been difficult for the Centre to have attempted to control them; indeed, that was likely to be counterproductive because if such attempts were made, there was a real possibility the claimants would not have complied and instead focused on their other interests in, for example, touring/performing (which they had the freedom at all times to do). That would have left the Centre with the problem of having to find alternative PVG-vetted musicians to replace them, or reorganise work amongst the other tutors, potentially compromising their pupils’ continuity of development; and, 71.5. The ethos of the Centre appeared to me to be much more of a collaborative, creative community of equals rather than a hierarchical organisation through which control could effectively be exercised. Mr Vass himself is a traditional musician of considerable renown (as was his predecessor as Director, Mr Pincock) and as I have repeatedly stressed, the purpose in engaging the claimants was so that the Centre could expose its pupils to the best traditional musicians. To me, control appeared anathema to that very ethos and purpose. 72.Related to the “control” test is the question of substitution. Whilst the Pimlico Plumbers case concerned “worker” status, it is also relevant to “employee” status on the question of whether the individual is required to provide personal service. An unfettered right on the individual’s part to send a substitute in their place would normally be a (potentially conclusive) factor against a requirement to provide personal service, and thus against “employee” status, as Etherton MR recognised. 73.Having considered the cover clause and its practical implications in the “Substitution” section (above), I have reached the conclusion that the claimants’ cases are not really “true” substitution cases. As I have found, there was no express power of substitution exercisable by the claimants under the contracts at all. Whilst the absence of an absolute power to substitute is a factor which could point towards a requirement for personal service (as per the first point of Pimlico Plumbers), the issue of whether the power was absolute or conditional (the second point of Pimlico Plumbers) does not enter the equation because the contracts did not provide for such a power in the first place. 74.The height of the contractual position was that in the event of cover being required, the claimants were asked to help the respondent find a replacement. To that end, it is also accurate that any covering tutor suggested by the claimants would have to be vetoed by the respondent if they were not sufficiently competent or not PVG-vetted (the fifth point of Pimlico Plumbers). 75.Whilst the absence of a power to substitute (in absolute or conditional terms) and a residual veto are factors which could suggest personal service on the part of the claimants, they are not necessarily determinative: the matter must be decided firmly in the context of how the relationship actually operated. In my judgment, of determinative weight in deciding the “personal service” question were matters relating to the third and fourth points of Pimlico Plumbers: 75.1. These were not cases where cover would only be needed if the claimants were unable to perform the work; if they did not wish to carry out the work they did not in fact have to do so at all, even during the lifetime of each contract. The example of the third claimant was particularly instructive in this regard: if another commitment arose which was deemed by the claimants to take greater priority than teaching at the Centre at any particular time they could, at their entire discretion, have chosen it over the teaching. This did in fact happen and everyone understood that it could happen. 75.2. Although a residual veto power did rest with the respondent (for reasons that are obvious), as I have also found, the identity of the person covering would emerge through what was essentially a process of selfselection; indeed, no formal process existed at all and in many instances the claimants’ work would simply be absorbed by others without the need for an actual nominated substitute. It was not essential that the claimants undertook the teaching, so long as the teaching itself was carried out. 75.3. The pool for selection of any substitute would be relatively small given the nature of traditional music and the available “talent pool”, and the pool itself was not set by the respondent. The requirement for PVG-vetted status of persons working with children is set nationally rather than by any one local authority, and the best traditional musicians emerge from the industry itself. 75.4. However, it is right to say that if they did not exercise their discretion and taught lessons, the claimants were providing service personally during that time. 76.The absence of a contractual power to substitute in these particular cases does not of itself suggest a requirement for personal service; in my judgment, its absence is better explained by the fact that if the claimants were unavailable – by choice or otherwise – the respondent recognised that it would have to do what it could to solve the problem, and by the respect it knew it had to pay to the claimants as independent professional musicians with other industry commitments. 77.The height of the personal service element is that the claimants provided personal service during the times they taught lessons, but the other aspects of the relationship did not, in my judgment, point towards the relationship being one of a contract of service. it follows from this analysis that I do not consider the claimants to have had the requisite degree of personal service to have made their engagements ones of employment. 78.As to integration and the point posed by Stephenson Jordan and Harrison, my findings under the “Integration” section (above) entirely dispose of it. Inwardly the claimants were integrated to a low extent by virtue of their membership of what really was a loose but collaborative collective of tutors and by virtue of them having an @plocktonhigh.org.uk email address, but outwardly they remained independent and on its website were actively publicised by the Centre to the outside world as being independent, for entirely understandable reasons. 79.In addition, it was not suggested that the Centre otherwise had a workforce of employees doing the same work (bar the Director, who was an employee and did undertake teaching), or that the work the claimants did was ancillary to that of any such workforce. The nature of the work the claimants did actually pointed towards independence rather than towards integration. In my judgment, the claimants firmly fell on the “contract for services” side of the Stephenson Jordan and Harrison divide. 80.As to the economic reality (Lee), taking all of the above matters into the round it was abundantly clear to me that the claimants were performing the services under the contract as persons in business on their own account. This was evident from the lack of control on the respondent’s part which I have already described, but also principally because of the wide-ranging business models the claimants all individually had. Whilst no doubt very important to each of them, the work carried out by the claimants for the Centre gave rise to but one income stream for them, and it was a commitment which at any point could have given way to other commitments deemed by them to take higher priority. That did in fact happen from time to time, and all sides understood that it could. 81.For all of the above reasons, my judgment is that the claimants were not at any material time in this case employees of the respondent. In those circumstances, their claims of unfair dismissal and wrongful dismissal (both of which depend on their having had employee status, as a matter of statute and contract respectively) must be dismissed. Were the claimants “workers” of the respondent? 82.In the alternative to their contentions that they were “employees”, the claimants contend that they were “workers” within the meaning of s.230(3)(b) Employment Rights Act 1996. Whilst “workers” enjoy a lesser range of rights than “employees” and the legal tests are different as between the two categories, the arguments raised by parties often cover similar ground. That is certainly the case here. 83.The starting point is whether a contract existed between the claimants and the respondent. For the reasons I have already set out, I have found that there were a succession of contracts spanning multiple academic years, punctuated by breaks over the school summer holidays, and no overarching contract. 84.In deciding the distinct question of “worker” status I have borne closely in mind the Uber decision and the protective purpose of the legislation. However, in contrast to some of the cases decided under the “worker status” banner it was not suggested by the claimants that theirs was an industry where individuals are particularly prone to exploitation or one for which the protective purpose is acutely needed. In any event, the purpose of the legislation is not so elastic that anyone requiring such protection should necessarily come within its ambit: as Lord Leggatt emphasised, it is the statutory definition itself which should be interpreted purposely. 85.The first point made by Mr Morgan concerns the degree of control exercised by the respondent over the claimants. Whilst I have already decided that any degree of control was insufficient to support a conclusion of “employee” status, it does not necessarily follow that it is insufficient to support a conclusion of “worker” status. 86.However, looking at the degree of control exercised by the respondent in these particular claimants’ cases, I have not been persuaded – despite Mr Morgan’s helpful submissions – that it was sufficient to support a conclusion of “worker” status either: 86.1. Whilst the rates of remuneration were set by the respondent, they were only set according to nationally-publicised rates set out by the MU and respectful of them. Whilst this rate-setting was not something to which the claimants were themselves parties, it was not simply a case of an employer setting them at will: the rates were actually those put forward by the representative body of professional musicians. 86.2. In addition, as I set out above, the claimants were not controlled by the respondent in how they worked at all, and not even where they worked. Although the “academic session” was a known timeframe within which the work was generally done it was not set by the respondent and not a method of controlling the claimants: it was their own availability which dictated to the respondent when the work would be done during the course of each academic year. 86.3. Furthermore, and in my mind most significantly of all, the respondent could not in fact require the claimants to perform the work at all, as the latter retained a complete discretion to prioritise their other professional commitments over and above teaching at the Centre (even during the lifetime of each contract) and there was evidence of that power having been exercised. 87.The second point made by Mr Morgan concerned personal service and substitution. In the employment status section of this judgment I have already decided that the claimants lacked the degree of personal service required for them to be “employees” of the respondent, but that is not necessarily determinative of whether there was sufficient personal service for them to amount to “workers” (Cotswold Developments). 88.It was conceded in submissions by Mr Stafford that the respondent was not arguing that it was a “client” or “customer” of the claimants, and from this it follows that the exclusion of “worker” status provided for by s.230(3)(b) would not apply. 89.As Baroness Hale observed in Bates van Winkelhof, the fact that individuals may describe themselves as “self-employed”, operate as a business in their own right and conduct their own tax affairs does not exclude them from being “workers”. In this context, I accept that the claimants provided their services to the respondent as independent businessmen and as a part of the varied business models they each had, but on the basis of Mr Stafford’s quite proper concession the status of “worker” cannot be excluded from the claimants where the respondent was not their “client” or “customer”. 90.I have borne in mind the issue of substitution. Whilst I have reached the conclusion I have reached on that issue in relation to “employee” status, in determining “worker” status I have found it to have been of little assistance. There was no express right to substitute under the contract, and the situation was not really one of “true” substitution at all; the point took the matter no further save to note the absence of an unfettered power. 91.The critical issue appears to me to be one grounded on personal service. In my judgment, this was not a case where no personal service was required of the claimants at all. Whilst they could at their own discretion decide not to do the work, (meaning a replacement may have needed to be found, or work absorbed by others; see above), in the event that this discretion was not exercised they were, in my judgment, personally required to do it. 92.As I have repeatedly emphasised, the point of having the claimants teach pupils at the school was so that these young, developing musicians could learn from the best in the business. The claimants were in-demand by the respondent very much because of their status as first-class musicians in their own right, and the service requirement during lessons was in this sense personal to them and that very status. The statutory definition is certainly broad, referring as it does to “any” work being performed personally. When the claimants actually taught lessons, they were undertaking to carry out work personally, and during those lessons they could properly be said to be “workers” of the respondent. 93. In my judgment, and for the reasons set out above, the claimants were “workers” of the respondent during the times they taught lessons. This being the case, they are entitled to pursue their claims in respect of holiday pay (pursued as unauthorised deductions from wages claims under s.13 Employment Rights Act 1996 or, in the alternative, as freestanding claims under the Working Time Regulations 1998) and under s.1 Employment Rights Act 1996 in respect of an alleged failure on the part of the respondent to provide them with statements of employment particulars. 15-04-2026