Brought to prominence by high-profile claims against the likes of Uber and Deliveroo, the issue of ‘sham or ‘bogus’ self-employment has become a common feature of discussions weighing up the pros and cons of the ‘gig economy’. Involving situations where an employer is able to evade providing the employment benefits and protections that would normally be due to an employee, while that person simultaneously misses out on the freedoms of a true freelance service provider, it is easy to assume that such working arrangements are a product of the digital era.
While the explosion of app-related work has certainly played its part, however – creating much greater degrees of separation between managers and frontline workers – it would be wrong to think that the problem only relates to tech-driven operations. In June the supreme court upheld a verdict in favour of heating engineer Gary Smith, relating back to work he had undertaken for Pimlico Plumbers between 2005 and 2011. Attending repair jobs in a company van, wearing a branded uniform, Smith was nonetheless treated by the firm as self-employed – a categorisation the court concluded was incorrect.
Another easy assumption is that ‘bogus’ self-employment is largely a problem for the private sector, exploited by unscrupulous capitalists who hold little regard for their workforce.
The case of 27 arts educators embroiled in a battle with London’s National Gallery, though, has led to questions being raised about the employment practices of publicly funded organisations.
Having all worked at the gallery for at least ten years, the 27 educators – now known collectively as the NG27 – claim that their roles were unfairly terminated as part of widespread changes to the education department, introduced in late 2017. While the gallery viewed the educators as self-employed, the group argued that attributes of their work – including the fact they were paid via the gallery’s payroll and taxed at source – indicated that they should instead be regarded as employed and were therefore entitled to a greater level of job protection, as well as retrospective holiday pay.
With neither side happy to accept the other’s position, the dispute has taken over a year to reach the point of a hearing at the Central London Employment Tribunal, which opened on 26th November 2018. After ten days in session, followed by the submission of barristers’ closing arguments on 18th December, the presiding judge is now in deliberation, with a final verdict not expected until later in the New Year.
Following a decision made at a preliminary session in October, the judge will also rule on a new question of law looking at whether the right to paid consultation should be extended to those with ‘worker’ status. One of a number of categories of employment recognised by the UK government, ‘worker’ status applies to people who are contracted to work in reward for money or benefits in kind, where they only have a limited right to subcontract that work, they are obliged to turn up, and they aren’t performing the work in an arrangement where the ‘employer’ is actually a client and where the employer must have work for them to do while the contract lasts.
The NG27’s journey towards the tribunal began at a meeting on 12th October 2017 when they and their colleagues were informed of planned changes to the education department and the way in which its services were delivered. As NG27 member Steven Barrett explains, “We were told that the present model, which had been running for decades, would end. Fundamental to the new model was that there would no longer be a team of so-called freelance lecturers and artists but instead twenty-four new roles comprising fourteen permanent (both full and part-time) and ten casual contracts (with no hours guaranteed). We were told that we could all apply for these twenty-four new contracts.”
Critically, however, Barrett says that forty-four educators were then working at the gallery, meaning that at least twenty of them would have to leave. With preference being shown to those who had worked more regularly over the previous two years, managers said that the new model would be up and running by April 2018 and that no new bookings for educators would be taken on the basis of the old model.
Barrett had until then worked at the gallery for a total of thirteen years, including eight years between 2008 and 2016 when the institution was his sole employer and he worked on average five days out of every seven. He says he and his colleagues were aware that their relationship with the gallery, “carried all the hallmarks of employment even though we had always been referred to as ‘freelance’”, but that previous attempts to clarify matters had never been resolved. He is keen to point out, though, that the educators “loved” their work, adding, “We are all still passionately committed to the success of the gallery and we care deeply about its future.”
According to Barrett, twenty-two of the twenty-seven applied for the new contracts offered by the gallery, with only thirteen ultimately being offered a new role. “Eight of these,” he says, “were permanent ‘educator’ contracts carrying a 35% pay cut and inferior terms”. The new contracts would label each educator as a ‘new starter’, with their prior service not taken into account. Five more of the twenty-seven were offered casual ‘artist’ contracts, with no specified or guaranteed hours.
“Crucially” Barrett adds, “nine of us who applied were offered no contract at all. Of the eight offered a permanent contract, only three felt able to accept given the pay cut and poorer terms. So, from the original team of forty-four educators, only three are still employed at the National Gallery on a permanent contract.”
Because the education team at the National Gallery had, until that point, been “very long-serving” and many of its members had become friends, Barrett says that it was “natural” for them to “come together as a group to seek fair treatment.” An early appeal to negotiate with the gallery was declined on the basis that the members of NG27 had been self-employed, meaning the institution had no obligation to engage with them collectively. Realising that they were expected to “take it or leave it”, the group, therefore, sought legal advice in late November 2017.
Alongside the abrupt nature of the changes, one of the groups main complaints has been a lack of consultation. As Barrett explains, “We were not consulted at all about the new education model; rather we were told at the October 12th meeting that it would definitely be implemented. In January 2018, following a meeting we requested with the gallery Director, a limited number of workshops were arranged to further explain the changes. At no time was this presented as a consultation. We have never been asked for our views. The gallery refused to talk to us after January 2018, despite a further request on our part.” Barrett says that the gallery has retrospectively presented its reaction to the group’s complaints, as well as the recruitment process for the new roles, “as an extensive consultation process, which it absolutely was not.”
Describing the impact the legal battle has had on the group, Barrett said that, “It has been a lengthy process and we have been put under great pressure. We did know from our legal team – who have been excellent – that it may take over a year to get a judgement on our employment status. Organising a class action requires sustained, coordinated communications and administration. As a result, we’ve all become much closer.”
Faced with mounting legal costs, the group have been running a successful crowdfunding campaign via crowdjustice.com, offering supporters rewards, including museum tours and drawing sessions. Given that the National Gallery is a non-departmental government body, sponsored by the Department for Culture, Media and Sport, their case has also attracted interest in Westminster, with Labour politicians being particularly outspoken.
At a cross-party meeting with the NG27 in November, Jeremy Corbyn offered “support and solidarity”, noting that it was, “a hugely important case with significant implications in the wider fight for employment rights.” Reiterating Corbyn’s comments, MP Justin Madders – who serves on Labour’s front bench as a Shadow Health Minister and Shadow Minister for Labour (as maternity cover) – suggested during the meeting that a future Labour government would seek to change the law in order to provide a “presumption of employment” for workers in similarly ambiguous contractual situations. He also noted that organisations funded through the public purse should be required to meet ethical standards of employment.
Responding to a request to elaborate on his thoughts for this article, Madders said that Labour believes, “that all Government Departments need to examine closely the employment practices of any organisation they fund.” Asked whether there are any existing employment models that could act as a guide to best practice, Madders points out that, “Local Authorities have been implementing such models for a long time. The Unison ethical care charter (which outlines a baseline of employment standards for the care sector) is a good example of what can be done.”
In terms of its own position, the National Gallery declined to comment while legal proceedings are ongoing but did produce a previous statement – quoted in various news reports published before the start of the tribunal – arguing that:
“It is important to state that this case should not be likened to the ‘gig economy’ debate that has been in the news recently, with legal cases brought against Hermes, Uber and Deliveroo. In fact, the National Gallery situation is exactly the opposite. The ‘gig economy’ cases have arisen out of organisations opting to offer people ad hoc employment, zero hour contracts and no opportunity for job security. We have taken a deliberate choice to move towards a model that offers people secure employment, with additional pension and worker benefits.”
Supporters of the NG27, though, would argue that – prior to the implementation of the new model – the gallery was acting in a similar way to ‘gig economy’ companies, by employing workers on ‘freelance’ contracts that offered them little job protection, and utilising that lack of protection by effectively terminating the contracts at the end of last year.
In a letter to his counterpart in government, dated 26th November, Labour’s Shadow Culture Minister, Kevin Brennan went as far as to describe the position the NG27 had been placed in as a “national shame”. Drawing a direct comparison to private sector cases against Uber, Deliveroo and Pimlico Plumbers, “It is,” he stated, “unconscionable that an organisation funded by public money would behave in the same manner. Not a penny of taxpayers’ money should be spent defending this conduct.”
Responding to Brennan’s intervention, a National Gallery spokesperson told www.museumsassociation.org that “The gallery would have welcomed the opportunity to resolve any differences through mediation, but the claimants did not accept the gallery’s requests to enable these discussions to begin before the tribunal hearing started. Since the claimants have brought a multifaceted claim through the tribunal system, and since the large amounts of money claimed by them are sums which the gallery disputes, the gallery has had no alternative but to defend the claims… The legal costs are unfortunate but they are a lot less than the amounts in dispute.”
It remains to be seen who the tribunal judge will ultimately side with, but – by pushing their case this far – the NG27 have ensured their complaints have been given detailed examination, not to mention public and political attention. Should the case also lead to changes in the law, as well as increased political oversight of the employment standards of ‘arms-length’ organisations funded by the government, they will feel they have been doubly vindicated.
Editor’s note: The NG27 are still seeking donations on their Crowd Justice page, where you can also find some beautiful illustrations of their experiences in court. You can follow their story on Twitter, where they run one of my favourite accounts of the year so far.