Schools employing external instructors

Issue: When does a school need to use a licensed provider?

1. The aim of licensing is to provide schools and the general public with assurances that they are handing their charges over to someone who has had their safety management systems inspected and that they are operating in line with current good practice.
2. Educational establishments (schools/colleges) themselves are exempt from the requirement to hold a licence when providing to their own pupils or students.  Covered under that exemption are their employees e.g. a teacher. Educational establishments providing licensable activities to pupils of another school or college in return for payment would require a licence.
3. It may be helpful to set out two scenarios to illustrate a licensable and a non-licensable example.
   1. An instructor collects the group and a supervising teacher from the school, decides on a suitable venue and takes them there, delivers a rock climbing session together with all the equipment, and returns the group to school.  We believe this is clearly licensable, irrespective of the mechanism by which the instructor was paid;
   2. A school has its own sailing club and staff from the school deliver regular sessions as part of the timetable.  The school holds RYA Teaching Centre status and so is managed by an RYA Senior Instructor (SI).  On a particular day one of the regular teachers is ill and a freelance instructor is brought in.  The freelancer’s role in the session is managed by the SI and he is allocated students for the session.  We believe that this is clearly school provision to its own pupils and thus exempt from licensing, irrespective of the mechanism by which the free-lancer was paid.
4. The key issue is who is providing the session, the school or the freelance instructor.
5. Key indicators in identifying status of the individual instructor may include, but would not be limited to:
   • Will the school accept responsibility even if it all goes wrong?
   • Is the instructor covered by school’s insurance?
   • The individual’s status as would be identified under employment law.
6. If a school chooses to employ, and therefore actively manage, rather than contract with, an unlicensed provider who would otherwise require a licence, then the school will take full legal responsibility for that employee and their actions as for any other employee and can use the exemption to licensing afforded by AALR.

   However, schools should be aware that it is still their responsibility under general health and safety legislation to ensure so far as is reasonably practicable, that the sessions are delivered safely, that the instructor is competent to do so, and is managed and monitored accordingly.

7. Further, whether the individual instructor is taking either a lead role or an assisting role in the delivery of the activity is not the issue.  Some schools may try to evade this issue by claiming that the freelancer is merely assisting and not leading the session, when in practice the converse is actually the case.  A key consideration is the question of who has the greater expertise and influence on the delivery of the session. and schools/colleges are strongly advised to discuss and come to an agreement on this issue between them, before activities take place.  Doing this will help clarify whether or not a licence is required; they can also seek advice from AALS.

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