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19 October 2016

Beats, shoots and leaves…

The question of the employment status of beaters and pickers-up comes around as regularly as the Glorious Twelfth. For some, beating and picking up represents an enjoyable day out in the countryside, promising some vigorous exercise and a hearty lunch. For others, however, supporting a shoot is a time-consuming and costly process, with the compensation provided by the shoot organisers failing to cover basic equipment and travel expenses. When then do the arrangements with beaters and pickers-up look more like an employment relationship rather than just a bit of sport?

It is essential that shoot organisers consider this question when deciding how to recruit and manage the individuals taking part in shoots. It is commonly believed that beaters and especially pickers-up will be considered self-employed due the casual nature of the arrangements and the fact that they provide their own equipment, for example in the form of working dogs or their personal vehicles. Unfortunately for shoots, the answer is not that straightforward.

Individuals performing services in return for payment will fall into one of three employment categories: employees, workers or those who are self-employed. When determining which category applies, a court or HMRC will look behind any labels used by the parties themselves and will instead look at the reality of the working relationship as a whole. If it appears that there are factors which point towards an employment relationship, there will be corresponding obligations on shoot organisers, not least the need to ensure that beaters and pickers-up are paid national minimum wage for each hour worked during a shooting day.

With the introduction of the National Living Wage earlier this year, shoots could find themselves looking at a significant wage bill. Employers must pay all employees aged 25 years old and over at least £7.20 per hour. For 21 to 24 year olds, the national minimum wage is £6.95 per hour, 18 to 20 year olds should be paid £5.55 and under 18s must receive £4.00 per hour.

So what factors determine an employee? It will depend upon the amount of control that shoots have over the individuals, whether those individuals are obliged to turn up to provide their services once the game keeper has offered them the shoot (known as “mutuality of obligation”), and whether they must provide those services personally, or if they can send a substitute to take their place.

Beating and picking up usually involves working as part of a team under the direction of the game keeper or senior beater or picker-up. The senior person will tell them where to be, what to do and when they need to do it. The shoot organisers may provide equipment, such as beating flags or hi-vis vests, and they will expect the beaters and pickers-up to comply with the rules of the shoot at all times. They need to arrive at the shoot on time and provide their services effectively until the end of the day. In that way, it is clear that shoot organisers retain a degree of control over the individual’s actions which is indicative of an employment relationship.

Similarly, some shoots may inadvertently create mutuality of obligation in the way that they recruit beaters and pickers-up. If, for example, a shoot runs for 60 days over the season and it books its beaters and pickers-up in advance for all of those days, it is arguable that the shoot has an obligation to provide the individuals with work on shoot days and that the beaters and pickers-up must turn up each day. There are also many shoots which have a core team of beaters and pickers-up who know the land, own well-trained dogs and are experienced in how the organisers like the shoot to run. They are therefore more likely to want those individuals to provide their services themselves and unlikely to accept an untested substitute in that person’s place. All of this reflects the obligations usually found between an employer and employee.

There are certain practical steps that shoot organisers can take if they wish to minimise the risk that beaters and pickers-up are found to be employees:

  • When recruiting to shoots, the game keeper should send out a letter and/or form to its known beaters and pickers-up, listing all shooting dates in the season. So that the game keeper can plan ahead for the season, they can request that the individual lets them know when they may be able to attend a shoot. They would also confirm that, if the individual is subsequently unable to attend a shoot once they have signed up to it, they should give the game keeper as much notice as possible to enable the game keeper to find a replacement. In those circumstances, the individual should also be invited to propose a substitute to send in their place, provided that the replacement is approved by the game keeper. This process would help to reduce the argument that there is any mutuality of obligation between the parties or a requirement for personal service;
  • Where possible, reduce the amount of control over the activities of the beaters and pickers-up (i.e. let them know when and where to turn up, but allow them to work independently during the shoot in the way that they perform their roles);
  • Ensure that beaters and pickers-up are aware that they can work for as many different shoots as they wish and that they can advertise their services accordingly;
  • Encourage them to use their own equipment, including dogs, vehicles, radios, sticks and appropriate clothing;
  • Consider whether the shoot can attract the necessary number and calibre of beaters and pickers-up if the shoot decided not to offer financial remuneration but instead provided compensation in the form of a good lunch and a brace of pheasants to take home (this may be unlikely).

If these factors are present in the working relationship, it will be more likely that the individuals are found to be self-employed and shoots should avoid any grousing about minimum wage. However, the situation is not clear cut, as the employment status of beaters and pickers-up will depend upon the particular circumstances of each individual shoot. If in any doubt, organisers should be sure to take appropriate legal advice. With the correct approach to sourcing and managing its beaters and pickers-up, most shoots should be able to avoid inadvertently creating an employment relationship.