Freelance Grooms and Disguised Employment Risks

Understand your rights and responsibilities.

By Kelly Wallace Horne

There is a great deal of confusion over the term “Freelance Groom”. We know, because it is demonstrated to us frequently. Understandably, many Yards (and Grooms) require flexibility within a work contract and so the term “Freelance” crops up. However, the status of “Freelance Groom”, or “Self-Employed Groom”, is not purely set by flexibility in requirements and who makes the income tax and National Insurance contributions. As far as HMRC is concerned, if a worker looks like an employee then they are ARE an employee, regardless of what a contract (which you should have) says or looks like, or what your verbal/email/text message agreement. It is often referred to as “Disguised Employment” or “False Self-Employment” and is regarded by the law as an Employer reducing costs by bypassing employee’s rights, protections, and responsibilities for taxes and contributions. Getting this wrong can lead to a huge legal and tax headache, with HMRC demanding backdated tax, plus fines and penalties – a very expensive outcome!

 

UK Employment Law

UK Employment Law assesses the real-life, day-to-day structure of your working relationship with a Worker, NOT what you have written down or verbally agreed with them. Now, when looking at employment matters as a whole, it seems very straightforward:

Control: do you tell your Worker what to do, when to do it, and how to do it? Or does the Worker decide how to get the work done?

Personal Service (vs providing a substitution): does the Worker have to do the required work themselves, or will you accept them sending a substitution to cover the required work when they are unable to attend? This needs to genuinely be in practice, not just in a written or verbal contract.

Mutuality of obligation: are you obligated to provide the Worker with days/hours? Is the Worker duty-bound to meet your requirements?

Employment tribunals/HMRC will also look at matters such as insurance, who sets the hourly/daily rate, who provides tools and equipment, and whether a Worker fixes mistakes in their own time and at their own cost…

 

Muddying the waters with the equestrian industry

Straight away we can see there are requirements unique to the equestrian industry that “muddy the waters” regarding these factors.

• Horses are sentient beings with specific care needs, there is rarely the option for a Freelance Groom to decide what time they turn up, what time they finish or how they complete the job. Each Yard (and potentially each horse) will have specific equipment, needs, routines etc., so it simply isn’t possible for a Freelance Groom to turn up, do things their own way, and leave when they like. Yards need cover when they NEED cover with very little, if any, wriggle room.
• The equipment Grooms use is extensive, expensive, and bulky. However, by rights a Freelance Groom should be bringing their own pitchforks, brooms, muck skips, wheelbarrows, grooming equipment, etc., but in reality, how reasonable is it to expect that a Groom is going to bring ALL this equipment to each yard they complete work at? It is not good practice for a Groom to be using grooming equipment between the numerous horses they attend to, risking cross-contamination between various yards and horses, and most yards would not be comfortable with this.
• Horses usually live at a set location, so Workers are going to be working at your establishment, unless you are hiring a Freelance Competition Groom to join you at shows. In any case, Freelance Groom cannot complete their contract at home!

However, none of this exempts equestrian yards from the law and, regardless of these factors, you will easily find yourself in very hot water unless due care is taken in managing your relationship with Grooms you consider to be “Freelance”.

 

Red Flags

Going back to our insight into this, we occasionally encounter job adverts for a “Freelance Groom”, or a “Self-Employed Groom” which expose the arrangement as potential “disguised employment” in the first instance. As a yard or equestrian employer, if you are using the following terminology/requirements in your advert for a Freelance or Self-Employed Groom, please think twice about the legalities of the arrangement you have in mind:

• “Staff”
• Full time, permanent role
• Live in job
• “Become part of our team”
• “Competitive rates of pay”, “Hourly rate negotiable”, National Minimum Wage (NMW) or any other suggestion of a wage (indicating a budget range is fine)
• A list of “you wills” – you are not recruiting an employee, you are drafting in independent help
• Set hours and times (indicating your general requirements is fine)
• Holiday leave/paid holiday
• Own horse welcome/possible – you might have livery space for another horse but it is illegal to exchange livery for working hours, and it also indicates “disguised employment”. A horse should not be used in a payment deal/remuneration package with a Freelance or Self-Employed Groom.

These are just some common examples, and this is by no means an exhaustive list of terminology that suggests disguised employment.

 

Avoiding slipping into Disguised Employment

An easy analogy to relate to is if you were looking for a local Carpenter to build you a new carport. You would not tell them when they must start, when they can finish, how long it will take, or how much you will be paying them for the job, and you won’t be providing the tools they will be using. While there are obvious differences between a Groom and many other Tradespeople, if you compare to this when you are advertising for a local Freelance Groom you will be more likely to avoid slipping into a disguised employment scenario, and be mindful of how your contract with a Freelance Groom should work.

Equally, it is very easy for a professional association with a Freelance Groom to gradually slip into one of disguised employment. Over time, it’s very easy for a local Freelance Groom to come to feel like part of the yard/team, which might seem nice, but from a legal standpoint it is absolutely vital this doesn’t actually happen. If at any point disputes should arise over time off, holiday, sick leave, maternity leave etc., it could end up in employment tribunal claims and tax liabilities, costing you dearly.

 

A note for Freelance/Self-Employed Grooms

This is not a one-sided responsibility; it is equally your responsibility to ensure that your working arrangement is legal for tax and all other purposes. It is deeply unwise to think that because your arrangement is mutually agreeable with your client/employer that it will be okay, or that you can claim disguised employment later on, should it fall in your favour to do so – HMRC is quite prepared to hold freelance/self-employed workers to account for perceived tax evasion!

 

“Health checking” an employment status

To help you navigate the complexities of hiring or being a freelance/self-employed worker, the UK Government has a useful online tool for checking the tax status of your arrangement. It’s called the Check Employment Status for Tax (CEST) tool. It can be used by employers/hirers, or the worker, to determine whether the contract should be classed as employed or self-employed for tax purposes. Not all of the questions are directly relevant to the equine industry, given the discussed complexities of the equestrian environment but, if answered honestly, it will give you a good handle on how your professional arrangement is likely to be viewed if put under scrutiny by legal and tax authorities. You can find the online tool on the UK Government website here: https://www.gov.uk/guidance/check-employment-status-for-tax.

However, this tool is not fail-safe, it is merely for guidance. It’s your responsibility to ensure that your contracts between workers, clients, and employers are law-abiding; it is wise to seek legal counsel for your peace of mind.