Contracts and employment - the legal aspects
A key consideration when employing overseas artists in Wales and the UK is their employment status which has implications on work permit, contract and tax issues. Important factors affecting a visiting artist’s status and work permit application are the terms and conditions offered by the host and accepted by the artist. A contract or a written agreement represents the legal relationship between employer and employee and it is essential to be aware of this and, if necessary, to seek legal advice when planning the visit of an overseas artist.
People can be employed on a ‘contract of service’, ‘contract for services’ or, in some cases, on no contract at all. A contract is established when an employer and employee agree the terms and conditions of employment. Although a contract can take the form of a written or verbal agreement, it is regarded as good practice for an employer to provide a written contract or letter of agreement.
An ‘employee’ and a ‘contractor’ have different statutory rights and there are different liabilities for the employer. It is equally important to clarify a person’s status either as a ‘self-employed’, ‘freelance’ or ‘consultant’ in a contract or written agreement.
An employee is an individual who enters into, or works under, a contract of employment. A contract of employment is defined as a contract of service. (The Employment Protection (Consolidation) Act of 1978). Employees have statutory employment, pay, discrimination, health & safety and trade union rights, and employers are expected to:
Pay a salary
Operate PAYE (if applicable) for tax and National Insurance
Provide a safe system, place of work, materials and equipment as necessary
Pay any expenses incurred by the employee when carrying out the job
Maintain a relationship of trust and confidence with the employee
A contractor is taken on to complete a piece of work which produces a result, and has a contract for services. This includes individuals undertaking work on a self-employed, freelance or other basis. Statutory laws related to contractors vary significantly from those of employees and are governed by contract law. Examples include:
Contractors have no employment rights (except race, sex and disability discrimination rights)
Contractors are responsible for handling their own PAYE and National Insurance payments
Contractors are responsible for ensuring safe use of work materials, conditions and systems
Employers must insure against negligence claims from employees but not against claims from contractors
Employers are usually liable for employees’ acts in the workplace but are not generally liable for those of contractors
Employers owe a higher ‘duty of care’ to employees than to contractors
Employment terms, conditions and contractual obligations related to visiting artists depend on individual circumstances, and it is not possible to provide a fully comprehensive guide in this publication. It is highly recommended that you consider the employment conditions of an artist in advance and, if necessary, seek legal advice.