ISM Column: Case in point

What is the ISM's history with this case?

ISM member Lesley Brazel works part-time, teaching clarinet and saxophone at an independent school operated by the Harpur Trust. Like many VMTs (visiting music teachers) and peris (peripatetic teachers), Brazel's termly working hours depend on how many pupils need lessons on her instruments. Brazel has a permanent ‘zero-hour-style’ employment contract, so there are no guaranteed minimum hours, and the employer pays only for work done.

Brazel first sought the ISM's help back in 2013 when the ISM in-house legal team took up her complaint about how her holiday pay was calculated and helped her bring a formal internal grievance. That grievance was dismissed because the Harpur Trust maintained that they were entitled to pro rate her holiday pay to term-time only since she didn't teach during the holidays. They based their approach to holiday pay on Acas guidance (since withdrawn) designed for working out the holiday pay of casual workers.

In March 2015, Brazel launched an employment tribunal claim under the Working Time Regulations. Since then, it has taken eight years – and a good many stages along the way – for the case to reach the Supreme Court, where it is due to be heard on 9 November 2021. The ISM's legal expenses insurance has funded Brazel's case throughout.

Since the ISM was created in 1882, we have been working to protect the rights of those working in music, but this marks the first time we have supported a case all the way to the Supreme Court. We salute Brazel's determination and feel privileged to have been able to stand behind her in this way.

What difference can a professional body make?

ISM membership includes access to our expert legal team, as well as legal expenses and insurance cover for a wide range of claims, including employment disputes. Without access to this kind of support, the cost of litigating makes enforcing employment rights a non-starter for all but the wealthiest. We help level the playing field.

In theory, you can represent yourself in the employment tribunal; however, in reality, the process is dauntingly complex. This ‘inequality of arms' is all too readily apparent when your employer arrives at the first hearing with their solicitor and barrister (sometimes two) in tow. In fact, the benefits begin long before you arrive at the tribunal, because an employer who knows you are backed by a professional body and able to pursue your claim through the courts, if necessary, is far less likely to break the law, and much more likely to be willing to negotiate.

What makes this a landmark case?

Every now and again, a case comes along that impacts upon thousands of workers who share the same working conditions, or who are subject to the same practices. This is one of those cases. It will impact not only on the holiday pay of VMTs and peris, but also on holiday pay rights for thousands of others who work term-time only, such as school catering staff and playground assistants.

The ISM has always maintained that the annual holiday entitlement of VMTs and peris should be calculated in the same way as for any other worker – by taking a week's pay and multiplying it by 5.6. If this case succeeds, it will end the common practice in many schools of pro-rating holiday in proportion to the number of weeks VMTs and peris are contracted to work, which has resulted in lost income for peris and VMTs countrywide.

How is the ISM continuing to support the case?

A key battleground in Brazel's case is over the question of fairness – is it ‘unfair’ for a VMT or peri with a permanent contract requiring them to teach term-time only to have their holiday pay calculated based on the full year? To help answer this question, the ISM ran a survey over three weeks at the end of the summer term, gathering important evidence of the lived experience of VMTs and peris. As we anticipated, the survey results highlight the extensive range of tasks VMTs carry out outside of their formal teaching hours, including – in most cases – during school holidays.

Unsurprisingly, the survey also yielded evidence of a demoralised sector, with low wages (around a third of those who completed the survey earn less than £10,000 from teaching), wage insecurity (like Brazel, around three-quarters have a zero-hour contract), and long, unproductive and unpredictable gaps between lessons. Several respondents remarked on the large gap between what teachers are paid and what parents pay. Schools usually justify this difference by citing the costs of administration, but our survey shows that VMTs and peris routinely take on much of this administrative burden themselves.

Brazel's case concerns a specific issue – holiday pay for term-time only workers – but as our latest investigation once again shows, this is just one of the many challenges facing musicians trying to build a stable teaching career in this sector.

For further updates about the case visit ism.org