A Bad Gig For The Public Sector?
An employment tribunal has held that art experts who worked for the National Gallery were workers when undertaking individual assignments and as such were entitled to national minimum wage, paid holiday, protection from discrimination and other rights. The National Gallery had argued that they were self-employed independent contractors.
The case is noteworthy as it is the first so called “gig economy” case that has involved public sector workers. All previous case law involving the employment status of “gig economy” workers (i.e. individuals who work on an assignment by assignment basis as opposed to under a permanent contract) has involved private sector employers such as Uber, Deliveroo, Hermes and others.
If the trend that has been seen in the private sector is any indication, this is likely to be the first of other cases involving individuals working for public bodies who have atypical working arrangements.
The three categories of employment status are, employee, worker and self-employed contractor. Employees have the highest level of employment rights and protections, they must be employed personally under a contract of employment (or equivalent) to work for the employer. Workers have fewer rights than employees but are still entitled to benefits such as the national minimum wage, paid holiday and protection from discrimination. In general terms, workers will also work under a contract of employment (or equivalent) but will generally have more flexibility such as the option to refuse work or to send a substitute in their place. A self-employed contractor has no employment rights or protections if genuinely in business on their own account.
This case involved 27 art experts who were working as educators on behalf of the National Gallery. The key factors the tribunal felt demonstrated that these individuals were workers rather than self-employed were:
- The training undertaken by the educators which required them to observe several talks, attend debriefs and familiarise themselves with paintings;
- The fact that there was no right or practice of substituting (i.e. sending someone in their place) or swapping assignments;
- The fact that the educators were required to conform to the Gallery’s stipulations not only in aesthetic or philosophical matters but also in teaching practice and presentation;
- The fact that the Gallery went to considerable lengths to make educators aware of their specific requirements through detailed written guidelines;
- The fact that the educators were required to be aware of the Gallery’s rules and policies (such as those governing health and safety or child protection) and were required to enforce as the responsible representatives of the Gallery;
- The fact that payments were made to the educators through the payroll and were subject to deductions for income tax and national insurance contributions.
The tribunal considered that these factors outweighed the arguments put forward by the Gallery that they did not have any obligation to provide work and the educators were free to decline assignments and that the Gallery or the educators could cancel assignments at any stage for any reason (in practice this very rarely happened).
The judge in the case said “it is unreal to describe the dealings between the parties as transactions in which the gallery stood as the “client or customer of any business transaction” carried on by any of the lead claimants.”
All “gig economy” cases of this nature are fact specific, however, the key themes which have emerged from those relating to private sector ‘employers’ when determining whether individuals are workers or self-employed are those of control and substitution. These issues were also key in this case. The greater the level of control exercised by the ‘employer’ the more likely it will be that the individuals will be workers. In this case the training, the detailed guidelines and the adherence to policies and procedures were all evidence of the Gallery’s degree of control over the educators. In relation to substitution, it is becoming clear that tribunals expect to see not only the ability for an individual to be able to provide a substitute, i.e. someone else to do the work, but also practical evidence that the ability to substitute has been exercised in practice, in order to demonstrate that the individual is genuinely self-employed. In this case there was no right of substitution.
It is important to note that the educators were only considered to be workers when they were working on an assignment. There was no evidence to suggest that an umbrella contract was in place for any periods between assignments.
The government published its Good Work Plan in December 2018 following the conclusion of the Taylor Review into Modern Working Practices. In the Good Work Plan the government has committed to legislating “to improve the clarity of the employment status tests, reflecting the reality of modern working relationships” adding that employers should not be able to avoid their responsibilities by trying to misclassify to mislead their staff. In addition to these representations regarding employment status regulations have been published which will require employers to provide all workers (not just employees) with a written statement, to include information on the length of time a job is expected to last, the notice period, eligibility for sick leave and pay, other rights to leave, any probationary period, all pay and benefits, and days and times of work, on their first day of work.
If you’d like any further information, please don’t hesitate to contact a member of our Employment team.