伊人直播

Judgment 12 June 2000 (unreported)

Point at issue

Whether visiting instrumental teachers (鈥淰ITs鈥�) were engaged under contracts of service or contracts for services.### Facts

Mr B and Miss H were engaged as visiting instrumental teachers (鈥淰ITs鈥�) by St John鈥檚 College School (鈥淪t John鈥檚鈥�). St John鈥檚 regarded them as self-employed but the Contributions Agency ruled they were to be treated as employees by virtue of the Social Security (Categorisation of Earners) Regulations 1978 (鈥渢he Regulations鈥�).

St John鈥檚 disagreed with that ruling and asked for the matter to be decided formally by the Secretary of State for Social Security (鈥渢he SofS鈥�).

The SofS decided

• neither Mr B nor Miss H were employed under a contract of service by St John鈥檚, so fell within the category of self-employed earner; but
• they were to be treated as employees under the Regulations
• St Johns was to be treated as the secondary contributor.

St John鈥檚 appealed on the grounds that

• it was not an 鈥渆ducational establishment鈥� within the definition in Regulation 1(2) in the Regulations. That definition should be read as exhaustive rather than non-exhaustive.
• the VITs were not in employment by it; they were 鈥渆mployed by鈥� the parents. All it did was act as 鈥渁gent鈥� by putting parents in touch with a VIT, providing the location for teaching, and collecting the fees.

Decision

The High Court dismissed the appeal on the grounds that

• St John鈥檚 was an 鈥渆ducational establishment鈥� within the meaning of Regulation 1(2); and
• the VITs were in 鈥渆mployment by鈥� St John鈥檚.

Commentary

This case is noteworthy in that it is the first to deal with issues on which there is no previous NICs case law authority. Although it was decided on its own facts, the judgement is of general importance as it is gives some guidance on the meaning of 鈥渆ducational establishment鈥� in Regulation 1(2).

On the first point he concluded:

• there is nothing in the legislation to restrict the meaning of 鈥渆ducational establishment鈥� in the way St John鈥檚 contended. 鈥淚ncludes鈥� was to be given its normal dictionary meaning.
• there may be 鈥減laces鈥� which might not normally be regarded as an 鈥渆ducational establishment鈥� but which come within the definition in Regulation 1(2). For instance, a town hall would be an 鈥渆ducational establishment鈥� if there was instruction given there 鈥� say as part of an evening class designed to lead to a diploma 鈥� by a visiting instructor.
• an 鈥渆ducational establishment鈥� does not necessarily have to be a building. For instance, if instruction is provided in the open air as part of a course designed to lead to a certificate, diploma, degree or professional qualification, that place (ie, the open air) will be an 鈥渆ducational establishment鈥�.
• a 鈥減lace鈥� where instruction is provided will be an 鈥渆ducational establishment鈥� irrespective of who provides the instruction.
• the course provided does not have to be part of the 鈥渆ducational establishment鈥檚鈥� own curriculum; Regulation 1(2) requires simply that the 鈥渆ducational establishment鈥� must be a 鈥減lace鈥� where such instruction is given.

On the second point, Mr Justice Munby commented that 鈥渆mployment鈥� in paragraph 4 (of the Regulations) meant 鈥渢he state of being employed鈥� and not the inclusive definition in section 122(1) of the Social Security Contributions & Benefits Act 1992 (鈥渆mployment鈥� includes any trade, business, profession, office or vocation鈥︹��). But the crucial issue was what was meant by 鈥渆mployment by鈥�?

For a more detailed commentary of the case see the NICs case law review on the IR Intranet at library/legal/NIC case review/NCR3/2000.