Cloisters barrister secures working rights for National Gallery Educators
Jon Cook
In a high-profile and landmark ruling understood to be the first “gig economy” challenge in the public sector, the London Central Employment Tribunal has ruled that Educators based at the National Gallery were workers entitled to holiday pay and protection from discrimination. Chris Milsom acted for the successful Claimants. Cloisters' Jonathan Cook discusses the case below.
The educators had undertaken work for the National Gallery for decades. The ET has delivered a comprehensive exposition of that work including the selection and probation process, the level of integration, the manner in which the educators were represented to the wider public and the level of control exercised by the Gallery. It regarded the Gallery’s “great efforts” to establish a right of substitution as “a wasted effort”: once an assignment commenced the educator was required to provide personal service. Similarly, the ET regarded the assertion that the educators were independent contractors in business on their own account as “unsustainable”. There were numerous factors which rendered that assertion “unreal”, including: “the recruitment arrangements; the supervision and control exercised over the educators; the extent to which they were integrated into the Gallery’s operations and held out as representatives of it; the fact that the Claimants were supplied with materials, facilities and support in numerous other ways; the pay arrangements including the fact that pay was set per session with no reference whatsoever to the educators; the fact that the educators were not allowed to retain tips; the provision for educators to recover expenses; and the Gallery’s retention of intellectual property rights in the Claimants’ work”. At the heart of the relationship was an inequality of bargaining power and a relationship of dependency: “the Claimants worked for the Gallery as its representatives”. As with many status disputes, much focus was placed on the specific factual matrix of the relationship. There are two points of wider significance, however, which many practitioners will regard as an opportunity wasted. Firstly, the ET did not accept that the Claimants were employees whether on an umbrella contract or on an assignment-by-assignment basis. The ET found that there were features of the educators’ relationship which were qualitatively different to that of orthodox employees. The finding on there being no global contract is hardly surprising, but there is a complex question yet to be resolved in the appellate decisions: at the point which work is being performed what is the fundamental difference between employee and worker? And, where relationships last decades with a practical expectation of work being performed and accepted, why should the deemed continuity provisions of ERA 1996 not bite? Secondly, the Claimants advanced a point of wider principle regarding the collective consultation rights under s188 TULR(C)A 1992. The plain wording of s188 is confined to employees but the right emanates from the Collective Redundancies Directive which extends the right to all “workers”. The Claimants contended that s188 was an inadequate transposition of the CRD and a Marleasing construction was required: the ET refused this invitation on the grounds that it went against the grain of the legislation. Given the CA decision in Gilham v Ministry of Justice [2017] EWCA Civ 2220 which in obiter accepted that the “worker”/”employee” divide is not in principle a fundamental feature of ERA 1996, the ET’s conclusion on this point may be doubted. Despite these caveats, the judgment is a welcome reminder of the ET’s role in piercing labels which do not reflect the reality of the situation. Entities invoking atypical working arrangements are encouraged to do the same. The Claimants for their part are delighted that their collective working experience of some 500 years has now been recognised as an integral contribution to the life of the Gallery as a public institution. Efforts to mitigate the damaging effects of the gig economy show no signs of relenting. For media coverage of the judgment see:-