T2 Consultancy Agreement for Visiting Music Teachers

This contract is applicable where Visiting Music Teachers (VMTs) or peripatetic teachers (peris) are carrying out their services in schools on a self-employed basis.

Different to our other MU contracts, the T2 is intended for use by schools to help protect true self-employment of VMTs.

It is supplied by Harrison Clark Rickerbys and is endorsed by the Independent Schools’ Bursars Association (ISBA) and the Musicians’ Union.

The guidance notes are essential reading; no liability will be accepted by Harrison Clark Rickerbys, ISBA or the MU for incorrect use of the Agreement arising from failure to follow the guidance, or errors made in the process of completing it. The Agreement is intended to be used as a whole document.

The Agreement and guidance notes do not constitute advice on any specific matter and we recommend that you seek legal advice if you wish to adapt the contract outside the scope of the options offered.

Guidance notes

This document is a suggested draft that will be applicable where peripatetic music teachers (known as peris or VMTs, you can use either terminology, but we have consistently used "VMT" throughout the document) carry out services on a self-employed basis. It is intended for use by schools where the engagement of the VMT will not be deemed employment for the purposes of the IR35 or off-payroll working rules because the VMT will not be providing their services via an intermediary. Schools should seek separate tax advice in relation to the application of IR35 and the off payroll working rules based on the individual circumstances.

Schools are encouraged to seek legal advice before making any substantial changes to this Agreement.

Please note that by implementing this Agreement alone, schools will not be ensuring that their VMTs are or remain self-employed. Schools should seek legal advice as to whether or not the particular circumstances reflect a relationship of genuine self-employment or whether a VMT is in fact an employee or a worker. 

While there are a whole range of factors that will be relevant in determining employment status, the key ones are control, personal service and mutuality of obligation. Generally speaking, an ‘employee’ will be subject to a higher level of control over how and when they carry out their work; they will be required to personally undertake the work; and there will be an obligation on the individual to work and on the school to provide work. In contrast, a genuinely self-employed individual will generally have autonomy over the method and timing of their work; will be in a position to provide a substitute to undertake the work at any time and without unnecessary limitation; and will be free to reject work.

Worker status is something of a hybrid category. In order for someone to be a worker, the key requirement is personal service (i.e., an individual has to provide the work personally, or only has a very limited right to provide a substitute) and depending on the circumstances an individual may be a worker where they meet this but not certain other key elements of employee status.

This document should be used as a starting point and given the complexities surrounding employment status, it is highly advisable that schools get legal advice on their particular circumstances and tailor the Agreement accordingly. 

Schools may also wish to read the government guidance on Employment Status. It sets out a number of indicators as to whether or not an employment relationship exists. 

The other party to the relationship is of course the parents and it is they who will be forming the contractual relationship with the VMT regarding the provision of instrumental lessons to their child. VMTs should have a document in place which sets out their terms of business. This will be between the VMT and the parent, and schools should avoid dictating or being seen to influence the terms of any such document.

Clause 1.1.

Schools should ensure that all normal checks for a teacher are carried out prior to the appointment of a VMT in accordance with the statutory guidance “Keeping Children Safe in Education” (KCSIE), and that the Single Central Record is completed. If in doubt as to the required checks, please seek legal advice.

Clause 2

This clause sets out the school’s obligations to the VMT. 

These obligations are suggestions only and may be expanded upon to meet the specific circumstances. Ideally, the VMTs will be charged for use of the school's premises to carry out their services.  Advice on charging rates may be obtained from the ISBA.

It is important, to accord with the VMTs self-employed status, to avoid integrating them into the school workforce. For example, schools should avoid including VMTs on staff lists, giving VMTs school email addresses, offering free school lunches or other benefits, giving named offices and/or job titles. 
In addition, whilst clause 2.1.1 provides that the school will promote the VMTs services to pupils and parents, it is important to avoid using language that describes the VMTs services as forming part of the school’s commercial offering, particularly within the school’s promotional materials. It should be made clear that, whilst the school may introduce interested pupils to the VMT and promote their services, the music tuition offered by the VMT is distinct from the school and is not offered by the school itself.

Clause 3

This clause sets out the VMTs obligations to the school. 

Control is a key factor taken into account when considering employment status and schools should avoid exerting a level of control over the VMT that serves to reduce or limit their independence. The greater the degree of control, the more likely it is that the VMT will be deemed an employee or worker in the event of an employment status challenge. avoiding timetables should limit the extent to which they dictate the timing of the lessons (save for avoiding timetabling clashes) and the manner in which the lessons are taught.

Clause 3.1.15 gives the school the scope to require the VMT to give written or oral advice or information to it in relation to the services but schools should be mindful that particularly excessive or unreasonable requirements in this regard could indicate a level of control akin to worker or employee status. Schools should seek legal advice if they are unsure as to whether a requirement for the provision of advice or information could present a risk from an employment status perspective.

It is important that the VMT is responsible for taking out their own insurance.  In particular, if the school allows VMTs to teach pupils from other schools on their premises, it is important to check the school’s own and the VMTs insurance to ensure that cover extends to this.

A school may wish to reference the level of public liability cover to the school’s risk policy. From a risk perspective, the school may wish to insist on being provided with the VMT’s insurance policy on commencement and renewal dates. Having such a policy may assist in demonstrating the VMT’s intention to be in business on their own account (i.e., genuinely self-employed).

KCSIE notes that where schools use contractors to provide services, they should set out their safeguarding requirements in the contract. It is, therefore, important to ensure that the school’s child protection and safeguarding related policies are brought to the VMTs attention and are referenced within the contract.

Clause 3.1.7 makes it clear that the VMT must comply with the school’s safeguarding and child protection related policies and procedures and can be tailored to reflect the arrangements for providing the VMT with access to such policies and procedures. Schools should review their policies and procedures and consider those that fall within this category. As a minimum, we would expect this to include a school’s safeguarding / child protection policy. The clause also provides for the VMT to attend and complete safeguarding training.

VMTs should not be subject to all policies and procedures applicable to employees, in particular disciplinary or performance management procedures. Certain other school policies and procedures will, however, be relevant and these should also be brought to the VMTs attention at clause 3.1.8. This may include, for example, the school’s Code of Conduct on Behaviour, Use of Internet and E-mail, Social Media, Anti Bribery and Data Protection Policies.

Clause 4

The template is drafted on the basis of the VMT invoicing the parent directly; however, there may be occasions where the school pays the VMT directly, for example it is common for schools to make payments to VMT’s directly for ensemble work, concerts etc. If this is the case, the school should put in place a separate agreement covering these activities.  This may be an area where the school may be at risk of a query on status for HMRC or employment purposes and schools should be mindful that it is possible for a VMT to be of one status for the purposes of their work as a VMT providing music tuition and a different status for the purposes of ensemble or ad hoc work. The invoice from the VMT to the parents should not be sent via the School, but directly from the VMT. 

Schools should avoid setting the fee or a recommended rate that the VMT will charge to parents or issuing guidance in relation to an appropriate fee as this could be seen to be exerting a level of control more akin to worker or employee status.

Clause 5

Ideally, the facilities charge should reflect the realistic cost to the school of providing the room to the VMT and, by including this, schools will add to the evidence that supports the fact that the relationship is genuinely one of self-employment. Schools may expect that the teaching rate charged by VMTs to parents will reflect the level of any facilities charge imposed by the school.

Clause 6

This clause contains the period of notice that will be required from either party to terminate the Agreement. It provides that at least a term's notice must be given in writing and the definition of a term is set out within clause 6. If schools wish to use a shorter or longer notice period, legal advice should be sought to ensure that the clause is amended appropriately.

Clause 8

This clause reflects the regime governing the processing of personal data under the EU General Data Protection Regulation (GDPR) and the Data Protection Act 2018.

It recognises that a VMT may be considered a controller in their own right. As such, it makes clear that VMTs have certain data protection obligations which the school will expect them to be responsible for. This includes obligations on VMTs to be transparent about their handling of personal data by making a privacy notice available to data subjects, and to pay their data protection fee to the Information Commissioner’s Office (ICO) unless they are exempt. Some VMTs may not have this in place, so it is important to draw these obligations to their attention with as much notice as possible so that this can be rectified before they start to collect, process or share personal data.

That being said, it may not always be the case that a VMT is solely a controller – they may instead or also be a processor - and there are a range of factors to consider when determining their status under data protection law. For instance, if a VMT does not have a direct relationship with data subjects, (i.e. parents (and pupils), and the school is determining what and how personal data is collected and processed by a VMT, they may be considered a processor. Schools should seek legal advice on their circumstances if they are unsure as to whether their VMTs are controllers or processors, and this Agreement may need to be adapted accordingly.

There may also be limited sharing of pupil (and parent) data between a school and VMTs so this clause sets out the arrangements for this which must ensure personal data shared is kept secure and only used for a specific purpose in accordance with this Agreement. Arrangements must also be put in place to enable data subjects to exercise their rights when data is shared.

Schools should ensure that they provide VMTs with a copy of the school’s data protection policy and the school’s privacy notice for parents and pupils when personal data is shared.

Clause 9

This clause evidences the intention that the VMT is self-employed, as opposed to an employee or worker. It is helpful to make this clear within the terms of the Agreement. However, as noted above, this will not be conclusive, and the question of employment status will be determined based on how the arrangements actually operate in practice. It notes that the VMT shall be fully responsible for the payment of tax and national insurance. It is important to note that requiring the VMT to be responsible for the payment of tax and national insurance does not automatically make the VMT self-employed, this is just an indicative factor. Employment status will be determined in consideration of the full working arrangement in practice.

Clause 10

This clause allows the VMT to provide, at his/her own expense, a substitute to carry out the services in his/her place, subject to the school’s prior agreement.

It is an important element of a self-employed contract that the individual can provide a substitute to carry out the services because it suggests that personal service is not essential (a key indicator of self-employment). Schools should avoid imposing limitations on the VMT’s right to appoint a substitute except where absolutely necessary and balanced against the need to ensure that any substitute is suitably qualified and appropriately DBS checked.

Should a substitute be appointed, the VMT will remain liable under the contract for the provision of the services as provided by the substitute.

Clause 11

It is not advisable to place an absolute restriction on the VMT undertaking any other work during the term of the Agreement. The fact that the VMT works for other schools / organisations will be a useful indicator of self-employment for employment law and tax purposes.