The short answer is:- “When they are working for themselves, being responsible for the content and delivery of their own programmes”
Looking at it from an employer’s perspective, is the freelance instructor covered by your employer’s liability insurance? (therefore not needing personal PL insurance). HSE guidance says: Whether or not you need employer’s liability insurance for someone who works for you depends on the terms of your contract with them. This contract can be spoken, written or implied. It does not matter whether you usually call someone an employee or self employed or what their tax status is. Whether you choose to call your contract a contract of employment or a contract for services is largely irrelevant. What matters is the real nature of your relationship with the people who work for you and the nature and degree of control that you have over the work they do.
You don’t need your own Public Liability Insurance when acting as a Labour Only Sub Contractor
Insurers generally define the type of sub-contractor covered by the Employers’ Liability Insurance as Labour Only Sub Contractors. So regardless of status, if the freelance instructor is full time, part time, regular or irregular, has a written or oral contract but is engaged to deliver the employer’s programme they will fall under this heading and to all intents and purposes is treated at law as an employee.
Using HSE guidance, Labour Only Sub Contractors are usually contractors who:
- Normally work for a ‘day rate’
- Often use equipment supplied to them
- Always do the work themselves and do not provide a substitute if they are unable to work
- Work under employer’s direction and adhere to their risk assessments
- Are treated in the same way as other employees, for example, they do the same work under the same conditions as someone else you employ
Employers are vicariously liable for the actions and omissions of their employees whilst at work whether permanent or part time. Recent court cases have extended the outreach of this legal principle ruling that vicarious liability including bullying, harassment, violent or discriminatory acts can exist in a wide range of circumstances making it important that employers are aware of their responsibilities and have the adequate cover in place should a claim occur.
You do need your own Public Liability Insurance when acting as a Bona Fide Sub Contractor (BFSC)
If you are working for yourself and being responsible for the content and delivery of your own programmes, whether engaged by an individual, a group or larger entities then you would be described as a Bona Fide Sub Contractor (BFSC)
Using HSE guidance, and from an employer’s perspective BFSC usually :
- Do not work exclusively for you
- Work without your direction
- Hold their own insurance
- Usually provide most of their own equipment
- They are clearly in business for their own benefit
- Can provide a substitute if they cannot work
It is the centre or employer’s responsibility to ensure that the BFSC is competent and has their own PL insurance, recognising that they are responsible and liable for the content and delivery of the activity they are providing.
It is not unusual, in the event of alleged negligence of the BFSC, to see a claim made against the centre in the first instance and not the BFSC. Hence it is the centre’s responsibility (and a policy requirement) to ensure that the BFSC has its own insurance to the same indemnity limits as those of the centre.