Do you consider an MD/Conductor 'employed' or 'self-employed'... ?

Discussion in 'The Rehearsal Room' started by TheMusicMan, Jul 29, 2006.

  1. TheMusicMan

    TheMusicMan tMP Founder Staff Member

    Seeing this mentioned by a few people in some excellent posts within another thread actually aroused my curiosity about the topic, and I thought it important enough to warrant its own thread, so here goes...

    Do you consider your MD/Conductor to be employed, or are they self-employed. i.e. is he/she an employee of the band, or do they actually work for themselves on a self-employed basis. Do you have a "contract of service" or a "contract for services" (as defined by HM Revenue & Customs) with your MD...? or do you have neither of those, in which case which category does your MD/Conductor fall into...?

    OK, can of worms well and truely opened... let the debate commence. :)
  2. Charmed

    Charmed Active Member

    After initially getting my interest on another thread, I certainly feel this needs to be clarified! From some comments, I think a lot of bands may be surprised at the outcome! :eek:

    Please, please, let someone in the know be able to answer this. Right off to research on t'internet.........:biggrin:
    Last edited: Jul 29, 2006
  3. TheMusicMan

    TheMusicMan tMP Founder Staff Member

    In another thread, Sue asked a superb and related question;
    ... and my reply which should also be posted here was;
  4. Charmed

    Charmed Active Member

    Here's what I have discovered on the Government Website relating to identifying status:

    "The majority of people in work are employees. You’re classed as an employee if you’re working under a contract of employment. A contract need not be in writing – it exists when you and your employer agree terms and conditions of employment. It can also be implied from your actions and those of the person you are working for. Your contract will normally set out what you’re expected to do. You’ll usually be expected to do the work yourself – ie you can’t send someone else to do your work for you."

    "Rights of employees
    As an employee, your employer is obliged by law to deduct Income Tax and National Insurance contributions (NIC) from your salary or wages before paying them to you. You’re also entitled to all minimum statutory employment rights including:
    • maternity, adoption and paternity leave
    • the right not to be unfairly dismissed
    • statutory redundancy pay
    • all the rights that are given to ‘workers’ (below) "

    This is a broader category than ‘employees’ but normally excludes those who are self-employed. A worker is any individual who works for an employer, whether under a contract of employment, or any other contract where an individual undertakes to do or perform personally any work or services. Workers are entitled to core employment rights and protections. The following groups of people are likely to be workers but not employees:
    • most agency workers
    • short term casual workers
    • some freelancers
    Rights of workers

    Providing any other qualifying conditions are met, all workers have rights:
    • to the National Minimum Wage
    • under the Working Time Regulations, including rest breaks, paid holiday and limits on night work
    • to protection against unauthorised deductions from pay
    • to maternity, paternity and adoption pay (but not leave)
    • to protection against less favourable treatment because of being part-time
    • to Statutory Sick Pay
    • to protection against less favourable treatment if you make a disclosure in the public interest (often called ‘whistleblowing’)
    • not to be discriminated against unlawfully

    If you’re self-employed, you do not have a contract of employment with an employer. You’re more likely to be contracted to provide services over a certain period of time for a fee and be in business in your own right. You’ll also pay your own tax and National Insurance Contributions (NIC).
    You do not have employment rights as such if you're self-employed since you are your own boss and can therefore decide, for example, how much to charge for your work and how much holiday to give yourself. You do have some legal protection.
    For example, you mustn't be discriminated against and you're entitled to a safe and healthy working environment on your client's premises. Self-employed women who've recently left their jobs may be entitled to Maternity Allowance.

    It is possible, in some limited cases, to be self-employed for tax purposes but classified as a 'worker' or an 'employee' for employment rights purposes – see section on “How to work out your employment status for employment rights”.
    This can occur because Employment Tribunals or courts may not consider all of the same facts when considering classification for employment rights purposes that HM Revenue and Customs, the Commissioners (who rule on tax and National Insurance matters) or courts do when considering classification for tax and National Insurance purposes.

    How to work out your employment status for employment rights

    There is no one thing that completely determines your employment status. If there is a dispute about your status between you and the person or company for whom you work, an Employment Tribunal will make its decision based on all the circumstances of a case.
    The sort of things the tribunal will look at fall into four main categories. Below are some questions to help explain what the categories mean. Try thinking about it as a sliding scale with ‘employee’ at one end and ‘genuinely self-employed’ at the other.
    The more of the questions you answer ‘yes’ to, the more likely it is that you are self-employed. If you answer ‘no’ to most of the questions then you are likely to be an employee. If you answer yes to some of the questions – in particular, questions such as – you can decide when you will work and can turn down work when offered; your employer offers work only as it becomes available – and you are not in business on your own account, you are likely to be considered a worker rather than employee.
    Remember that this is for guidance only and a definitive answer can only be given by an Employment Tribunal or court. You should get advice from an expert if you are unsure.
    The four main categories, and associated questions are:
    control: the extent to which the employer decides what tasks you do and how you do them
    • do you have the final say in how the business is run?
    • can you choose whether to do the work yourself, or send someone else?
    • can you choose when and how you will work?
    integration: the extent to which you’re part of the organisation
    • if you need assistance, are you responsible for hiring other people and setting their terms of employment?
    • are you excluded from internal company matters such as corporate training and staff meetings?
    • are you exempt from having action taken against you using the company disciplinary procedure?
    • are you excluded from company benefits and pension schemes?
    mutuality of obligations: the extent to which your employer is required to offer you work and whether you’re expected to do it
    • does your employer offer work only if and when it is available?
    • can you decide when you will work and can you turn down work when offered?
    economic reality: the extent to which you bear the financial risk
    • are you responsible for meeting the losses as well as taking the profits?
    • are you responsible for correcting unsatisfactory work at your own expense?
    • do you have to submit an invoice to the company for your pay?
    • do you get a fixed payment for a job (including materials and labour)?
    • do you provide the main items of equipment needed to do the job?
    • do you work for a range of different employers?
    SO FROM THE ABOVE, CAN ANYONE WORK IT OUT? Initially as I read, I thought, Oh, conductors are EMPLOYED. Then I thought, no, they fit into the WORKERS description, then reading the SELF EMPLOYED status, they could also fit into that category. :eek:

    I suppose it depends on how you interperet each one!

    Last edited: Jul 29, 2006
  5. jim

    jim Member

    Wasant there a case simerler to this a few years ago involving Phillip Bailey and Yevol band which endid up getting thrown out? Im not sure all the facts and figures of it all but rember there being a court case over such an issue?
  6. TheMusicMan

    TheMusicMan tMP Founder Staff Member

    Any publicly available documents you know of James...?
  7. jim

    jim Member

    I rember it was on the front of the british bandsmen possable around the summer of 2002 I rember defantly seeing it on the band couch somwere. I dont get the bandsmen so I carnt check it out but im sure theres somwon who can track it down on here. I also rember there being a section in brass band would Ill try and track that copy down cos I have it somwere.
  8. TheMusicMan

    TheMusicMan tMP Founder Staff Member

    OK, please do contact me if you find anything, thanks. Keep up the great work with PS...
  9. tpcornet12

    tpcornet12 Member

    I work for HMRC but in the Customs side so don't have a great deal of experience in this.... however, reading the above and from my limited knowledge I would suggest that most conductors fall under the category of being self-employed. I expect many would have other sources of income relating to their trade such as teaching / arranging and freelance work. As a Sole Prop, these should all be declared within the same business stream for tax purposes.

    As for the court case, it is my understanding that if a case has gone to court (unless subject to a Public Interest Immunity ruling) then it is in the public domain and can be purchased as a transcript from the courts.
  10. nook1938

    nook1938 Supporting Member

    In a previous reply I quoted only the Conductors would know, but as John mentioned it is not as simple as that.
    Which brings a number of Questions to mind: Do Bands class themself's as Employers / Is a Conductor a Worker / Do any players, other than Championship Bands pay any monies to players / Do Bands pay any Tax of any discription or National Health Payments / is there Health and Safety and risk inspections carried out, [I know there is a Policy to protect young persons] if all these questions come up with a Yes then as it as been pointed out it can definitely open a can of worms. Bands and Conductors reading these Threads will be wondering about their positions.

  11. bigcol

    bigcol Member

    I work on a non-fee basis. Does that make me tax deductable ;)
  12. persins

    persins Member

    I certainly remember that Phil Bailey and Yeovil ended up in court as they went their separate ways.

    I know that the Band won but I really don't know what the legal arguments were and what the specific acusations were either.

    With regards to my take on the conductor being employeed by a band, I would say that the Conductor would generally be self-employed and would be contracting themselves to the band for a defined period.

    It is like being a self-employed consultant who sells a service to companies as a contractor.
  13. TheMusicMan

    TheMusicMan tMP Founder Staff Member

    I tend to agree with you Simon. I'd say that unless there is a specific 'contract of employment' in place, most conductors are engaged by bands on a self-employed basis.
  14. bagpuss

    bagpuss Active Member

    I would have thought most conductors/MD's are neither employed or self employed by their bands. Most conductors that I know have a 'day job'. Banding is purely a hobby and as such I would expect MD's/conductors to be paid any out of pocket expenses rather than being termed employed or self employed.

    Just a thought

  15. Charmed

    Charmed Active Member

    It doesn't matter whether you have a day job or not. If you earn money from anything, ie, a second job, interest on savings (ususally tax is taken off by the bank) these are all tax deductable, after expenses are taken off. Travel expenses would be considered fuel, tax, insurance, part of the cost of your transport ie wear and tear. Anything you earn, if not taxed at source, (ie, as an employee) must be declared to the Inland Revenue, along with receipts for any expenditure. Most people in this position would be required to inform the Inland Revenue who will send out a self assessment annual tax return once a year.

    Even my husband, who is only an employee, had to fill in these forms for a few years, just because when the Children's Tax Credit first came into 'being' the return showed he had earned over the 'higher rate tax bracket' through overtime. The self assessment annual tax return wants to know about every bit of money that you receive, ie share dividends, interest at banks, 'payment for services' given, payments for any rent on property you may own etc.....

    By rights, not only should conductors declare their 'earnings', or any 'expenses' they recieve for providing a service, but also any player who receives any money from performing a service, should declare their payments. Any expenses occured will be deducted from the money earned (providing receipts are produced) and the rest will be tax deductable. I do know a little about taxable income as I used to work in accounts, and had to prepare yearly returns for the 'official accountants'!!

    The issue isn't whether any monies earned is declarable, it is, the issue is whether the conductor is considered to be employed by the band or considered self employed. If self employed, then there is no issue for bands, all payments should be recorded on the yearly accounts. If, however, conductors are considered employed by bands, then this would be a huge problem for bands, as any money should be taxed at source before given to the conductor, and any NI contributions should also be taken out and also the employer has to contribute to NI. Then there is the health and safety aspect, holiday entitlements (maybe), sick pay, maternity pay etc, etc, etc.......... :eek:

    Basically, A NIGHTMARE!

    Reading through the descriptions of 'self employed', 'worker' or 'employee', a conductor could fit into either category. I suppose the only way to actually find out is if someone contacts the Inland Revenue and asks them. But this could open a huge can of worms!!!!! So I can't see anyone actually doing this. Unless someone on here knows for definite! :biggrin:
  16. tpcornet12

    tpcornet12 Member

    I can't imagine a situation when an Assurance Officer (Inspector) would insist that a conductor should be described as employed. For the small amount of public money this would generate it is sensible for both parties (tax payer / HMRC) that tax should be declared on a self-employed basis. The best way (so as not to open the "can of worms") is; for a band that pays it's conductor to make it clear that they are a "contractor" and therefore paying a fee for the service. i.e. you wouldn't be responsible for the tax your plumber pays following the work done on your house!! It would then be up to the Conductor to talk to HMRC (Inland Revenue do not exist anymore) about his/her tax liability and self assess as other self-employed workers do.
  17. nook1938

    nook1938 Supporting Member

    I do not think [ BUT SOMEONE WILL PROVE ME WRONG] any Band or Conductor will come forward with their "agreement" because after all it is a Personal thing between themself's.

  18. tubafran

    tubafran Active Member

    Oh dear "Conductor 'employed' or 'self-employed'? what a nightmare that would be for a band if it was decided that they were employed - so if you then get into employment law you will need to
    • Give a minimum of 20 days holiday
    • Pay Employers NI contribution
    • How do you sack a conductor ?
    • Written Discipline Proceedures
    • Potential of unlimited fines in cases of "constructive" or unfair dismissal
    • Paternity and maternity leave and pay
    • Consider adjusting working hours to help with "family" committments
    • Leaving position open for return after maternity leave
    • Provision of employers liability insurance
    • Submitting monthly tax & paye payments to HMCR
    • Calculation of net payments
    • Annual tax returns
    So in addition to "employing" the conductor you'd also need to employ a HR officer too.
  19. Will the Sec

    Will the Sec Active Member

    One word - honorariam.

    It's not a salary, and is not an entitlement, and can be withdrawn at any time. This takes away any question of a conductor being an employee. It does not take away the need for the conductor to declare it though.

    This makes this question a non issue for most bands.
  20. GingerMaestro

    GingerMaestro Active Member

    In short reply I think, most MD/conductors come to a band and usually go through an audition (Interview) with the band and the band and committee then decide to take on that person or not.SO IMO they are an Employee of the band.

    The exception of cause is if you bring in a Pro conductor for a contest or masterclass etc then they are self-employed as you have chosen to bring them in on a temporary basis and are not a fixture of the band.