A hearing was held in Watford Employment Tribunal, on 15 – 17 January 2024, to determine whether the Claimants were employees with associated rights under the Employment Rights Act 1996 and Trade Union and Labour Relations (Consolidation) Act 1992.
In the judgment delivered on 9 February 2024, Employment Judge Read made a declaration that the Claimants were employees. Richard O’Keeffe acted for the Claimants instructed by Ryan Bradshaw of Leigh Day Solicitors. The case was funded by Law for Change.
Factual Background
The Claimants are authors who were engaged from 2007 and 2008 respectively as tutors on the Master of Studies course in Creative Writing, taught through the University of Oxford’s Department for Continuing Education. The judge described them as “highly professional, learned members of the department, [who] demonstrated a level of dedication and care for their students that all educators should aspire to”.
The MSt in Creative Writing was taught over two years and consisted of 5 residential teaching blocks and a Guided Retreat in each year, with lectures, workshops, tutorials and supervisions at each. Between the residences tutors reviewed work in preparation for delivering tutorials and marked assignments arising out of the previous residence. Tutors would also have critical and creative projects to supervise. In respect of Year 2 student supervision, tutors were allocated this responsibility in July. They were required to establish the relationship and review an initial draft of the work over the summer. The tutors would also have responsibility for marking those students’ work in the following September.
Contracts were issued, sometimes not until well into the academic year, purporting to create a 12-month “zero hours” arrangement with no obligation to offer or to accept work, albeit coupled with a detailed schedule of work reflecting the agreement reached before the start of the year. The documents included “substitution” clauses, on which the University relied to argue that the Claimants had no obligation to carry out the work personally.
The Judgment
Employment Judge Read considered the issue of the Claimants’ employment status under three main headings (1) Mutuality of Obligations (2) Personal Service and (3) Control, per the classic authority of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance.
In relation to the obligations under the contracts, the judge found that the Claimants were obliged to undertake the work as set out in the schedules of work, despite the assertions in the documents to the contrary, and rejecting the University’s insistence at trial that this was merely an “expectation” rather than an obligation. He considered it was essential that tutors commit to the teaching and supervision schedule for the effective planning of the MSt course and to meet the expectations of the students. The written term as to the period of the commitment was also not realistic, as it was in fact 15 months (July – September) rather than 12 months. The teaching commitments were not sporadic discrete assignments, and the fact that the contract did not involve full time hours was not a bar to finding employee status. The judge found that the Claimants felt a professional obligation to their students and that the University understood that. In finding the necessary level of mutuality of obligation the judge had regard to the power imbalance that existed.
In respect of personal service, the judge found only one example on the evidence of teaching being swapped as between existing tutors on the course, and held that any wider right of substitution was unrealistic given that the Claimants taught in specialist sub-fields of creative writing and required to be accredited by the University of Oxford as markers for an accredited course.
In respect of control, the University argued that the Claimants’ status in relation to the University was akin to that of musicians belonging to a cooperative orchestra, as in the case of Addison v London Philharmonic Orchestra Ltd. The judge found that in fact the format and schedule of the teaching was dictated by the University, and although the Claimants had some autonomy over the content and manner of their teaching, that would be the case for any employed academic as “to teach otherwise they would effectively be reading from a script”.
In holding that the Claimants were fixed term employees of the University, the judge also relied on the fact that the Claimants were held out by the University in the course materials as being full members of the faculty.
The case will now be case managed towards a full hearing of the Claimants’ claims, including for unfair dismissal and detriments for trade union activity and whistleblowing.
Press coverage:
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