The music profession is generally perceived as a category of freelancers, a world of self-employed artists doing gigs and concerts, carrying out their own business with no protection whatsoever, especially in terms of employment rights. This is not always the case. There are, after all, many types of music professions. Yes, there are performers and composers but there are also music teachers and church organists, music directors, choir singers, music examiners or orchestral musicians, to mention just a few. With few exceptions, and under certain conditions, these musicians may be legally considered as workers. As such, they may benefit from all or some employment rights.
Entitlement to holidays is one of the basic rights granted to all workers. Derived from EU legislation, in the UK the statutory right to holidays is governed by the Working Time Regulations 1998. The regulations provide that workers are entitled to 5.6 weeks’ annual leave in each leave year. The entitlement would generally, but not necessarily, include bank and public holiday – this will depend on the employment or engagement contract, which could also grant more than the statutory minimum. For a person working full time, 5.6 weeks would mean 28 days of holiday a year.
During their annual leave, workers have the right to receive their normal pay at a rate of a week's pay for each week of leave. The calculation of a ‘week's pay’ is not a simple exercise. In brief terms, for those working ‘normal working hours’ the week's pay corresponds to their basic weekly salary. For casual workers, or those working under a zero hours’ contract with no fixed hours, a week's pay is an average of all remuneration including any overtime payments and commission earned in the previous 12 working weeks, which will increase to 52 weeks (or the number of complete weeks for which the worker has been employed, if that period is less than 52 weeks) from 6 April 2020.
But many professional musicians do not have full time jobs. A visiting music teacher (VMT), for example, would generally work part time, for a few hours a day and only during school terms. Similarly, a music examiner would work for short-term periods across the year in connection with specific examination periods. While it is possible that contracts provide the VMT or the examiner with actual periods of paid leave, in many cases the worker will receive an amount in lieu of their holidays calculated at the percentage of 12.07% to their standard rate, and rolled up in their fees. Although this a wide-spread system, it has been criticized by the Employment Appeal Tribunal in the Brazel case, because it would not reflect the entitlement to 5.6 weeks granted by the Working Time Regulations. The case, which the ISM supported and backed throughout all the stages of proceedings, is now pending before the Court of Appeal, whose decision should be published shortly.
In conclusion, musicians should not confuse their art with their legal status. Being a musician does not mean that you have no rights. Check your contract, consider the nature of your engagement and think about whether you are actually receiving all the rights that you are entitled to, and are being paid the correct amount. If you are an ISM member and have any doubts, please contact the ISM legal department. Our trained staff will assist you to protect your rights.
Find out more about the ISM at ism.org. For more information on the Brazel case, visit tinyurl.com/mt7-Brazel.
