ESM4503 - Particular occupations: teachers, lecturers and tutors - NICs

SS (Categorisation of Earners) Regulations 1978 (SI 1978 No.1689) Regulation 1(2), Regulation 2, paragraph 4 in Part I of Schedule 1 and paragraph 6 in Schedule 3

Most teachers etc are engaged either part-time or full-time under a contract of service.

Where they are not, the above Regulations make provision for treating teachers, who are not employed under a contract of service, as employees.

They provide for a teacher who teaches in an educational establishment to be treated as an employed earner if they

• teach in the presence of their students unless they are working for the Open University; and
• are paid by the Education Authority or the person who provides the education, not by the individual student.

Exceptions

Do not treat a teacher as an employed earner if:

• prior to giving the instruction, they have agreed to give it on not more than 3 days in 3 consecutive months; or
• the instruction is given as public lectures. A public lecture is regarded as one which any one can attend; that is, it is not part of a course or confined to a particular group or society.

What is an educational establishment?

An educational establishment is defined in Regulation 1(2) as including

• a place where instruction is given leading to a certificate, diploma, degree or professional qualification; or
• a place where instruction is given which follows substantially the same type of syllabus but which is not designed to lead to such a certificate, diploma, degree or professional qualification.

Usually, it will be fairly easy to decide whether the place at which instruction is provided is an educational establishment – for instance, a school, university or college. However, less obvious places may also be an educational establishment. For example, a local town hall will be an educational establishment on occasions when it is used by a visiting instructor to give evening classes designed to lead to a diploma. The case of St. John’s School, Cambridge v Secretary of State for Social Security gives further guidance on this point – see ESM7230.

Where the instruction is given in places other than a school, college or university the Regulations should be applied only to those teachers who are giving instruction on courses which meet the requirements of regulation 1(2), as shown above, and are not purely recreational or vocational.

The Regulations should be applied to all teachers in a school, college or university regardless of the nature of the instruction or whether it is given outside normal school hours or whether the particular course leads to a certificate, diploma, degree or professional qualification.

Who pays the teacher?

If the school takes on the teacher, guarantees their payment of fees and is responsible for ensuring that the fees are paid by the parents, the school is paying the teacher.

If the teacher receives his/her fees, either via the school or direct from the parents, and has to personally pursue non-payment of fees with the parents, the teacher is not paid by the school. So the condition in paragraph 4(c) is not satisfied and the teacher retains self-employed status.

If it is alleged that the previous paragraph applies, confirm the facts carefully and check for evidence before accepting that the provisions are not satisfied. Do not assume that the school is liable because it includes the particular instruction in its syllabus or sets the fees.

Issuing opinions under the Regulations

Always use the draft letter at ESM0110 when giving an opinion under these Regulations.