ESM4152 - Particular occupations: examiners - status disputed

Our view is that generally examiners etc. are engaged under terms and conditions amounting to contracts of employment because:

• the functions of examiners, invigilators, question setters and markers are subject to considerable control by the examination boards, and
• the jobs which examiners etc perform are part and parcel of the organisation outside of which the function cannot exist.

These two points apply to degree, GCSE, and ’A’ level examiners and their equivalents in Scotland. It is one of the functions of a university to award degrees and to conduct examinations for that purpose. An examiner is an essential element of that function and an integral part of that machinery by which the university fulfils it. The university, through its Board of Examiners or some other appointed body, therefore has the right to exercise whatever control it considers necessary to ensure that the requisite standards of accuracy and consistency are maintained in the examination system.

Similarly, an examiner is an integral part of the Examining Board. They perform the functions as a representative of it. The examiner is not an individual outside the system rendering ancillary services. The Examining Board is required to ensure that examinations are of a required standard and content, and that the marking regime has the same qualities. Control is, therefore, exercised by the Board through a chain of responsibility. Detailed instructions are sent to each person in the chain, setting out their responsibilities and the procedures to be followed, including those necessary to standardise the marking. Typically, for example, moderators are appointed to scrutinise the examinations set by the chief examiners or the schools; and chief examiners are appointed to supervise the marking of papers by assistant examiners.

Should the examiner still not accept the position and the issue can only be resolved by way of an appeal hearing, inform the taxpayer that until the matter is resolved the employer will nevertheless be required to deduct tax under PAYE in accordance with the arrangements.

Before any arrangements are made for a contentious appeal to be heard by the First Tier or Upper tribunal, the case should be submitted to the SEC Technical team (see ESM0103 and ESM0125). It is important to note that before a submission is made, the full facts must be established including, in the case of degree examiners, the relevant terms of the University statutes and the terms of any main University appointment if the individual has one.

Remember that for NICs purposes, examiners etc are in most cases treated as self-employed (see ESM4148).