Employment tribunal rules that the group were wrongly labelled as self-employed by one of the UK’s top, publicly funded institutions, the National Gallery
In what has been described as a landmark ruling for employment practices in the public arts sector, a tribunal judge has decided that the National Gallery in London wrongly identified a group of 27 educators as self-employed. The judge said that the nature of the educators’ employment, which stretches back over decades, meant that they should instead have been treated as having ‘worker’ status.
The so-called NG27 have been involved in a long-running legal battle with the gallery, with the group claiming that changes within the education department, initiated in 2017, amounted for some of them to “unfair dismissal” and that by being falsely identified as self-employed they had all missed out on a range of rights and benefits. With the parties unable to resolve their differences, the dispute progressed to a hearing at the Central London Employment Tribunal, which ran from 26th November to 18th December 2018.
After a lengthy period of deliberation, Employment Judge A M Snelson presented his verdict on 28th February, clearly stating that when working for the gallery on individual assignments, the lead claimants were employed as ‘workers’. However, on the basis that the relevant rights do not extend to ‘workers’, the judge rejected the claims of ‘unfair dismissal’ and did not stipulate what, if any, compensation should now be due to the members of the group.
Despite having endured a drawn-out legal process, that looks likely to continue, the NG27 say they are “completely satisfied” with the verdict. “It’s been a tremendous effort over seventeen months” they acknowledge, “but it was worth it. The Judgement shows that we should never have been classified as self-employed and that we had to pursue litigation when the gallery refused to listen to us. The Judgement is damning of the gallery’s arguments and makes clear that no credible evidence was presented to support the assertion – described as “unreal” – that we were 27 unconnected businesses trading with the gallery rather than a team of loyal workers.”
For its part, the National Gallery has released a statement following the verdict that largely re-states its existing position. Making no reference to the ruling on ‘worker’ status, it says that “The Gallery welcomes the clarity provided by this decision, namely that the claimants in this case were not employees of the Gallery.” The statement goes on to argue that the gallery “has not ‘dismissed’ anyone as part of this process” and that “this case should not be likened to the ‘gig economy’ debate”.
The educators say they are not surprised by the gallery’s response, but that the judgement is nonetheless “quite damning”. “The judge” they continue, “lists at some length the evidence, all of which the NG had before the tribunal, proving our worker status. The gallery’s argument that we were contractors or ‘sole traders’ has been thrown out completely. We all hope that the gallery will now approach us with a serious attempt at mediation.”
Responding to the fact that the gallery continues to claim that “the majority” of the NG27 are still providing services on “the same basis” as before, the group say this line “is fundamentally untrue.” They argue that, “The long-serving team of educators was systematically dismantled in October 2017. None of the 27 are engaged on the same basis as before. All 27 have either lost their jobs entirely or are working under inferior terms and on reduced pay. Only three of the 27 still work as educators in the Education Department. Several others are engaged in occasional, ad hoc commercial work (private hire and corporate functions) either for the gallery or the National Gallery Company, but this is a fundamentally different type of work and definitely not the same as the education jobs that were lost.”
The group also say that it is “very disappointing” that the gallery continues to distance the case from the wider gig-economy debate. They point out that “We now have a definitive Judgement, stating that the educators’ self-employed classification was plainly and incontrovertibly wrong. This classification was devised by the gallery. We were denied our workers’ rights for years and the gallery has done everything to avoid acknowledging our true status. It is the same in the private sector where employers such as Uber sought to deny their workers the rights and protections they were legally entitled to.”
While the full significance of the verdict for the arts sector – and the employment practices of publicly funded organisations in general – remains to be seen, the NG27 have not yet reached the point of closure. Having already crowdfunded over £77,000 to pay towards the £90,000 cost of the legal process to date, they may now be required to invest more time and money. As the group explains, “Unfortunately it does not follow automatically that we now all receive the benefits to which we are entitled as workers. It may require further court time to secure these and the gallery may appeal the decision. If that happens we may need to raise further funds.”
The group will hold a meeting at Westminster’s Portcullis House on Tuesday 5th March, hosted by the Labour MPs Helen Hayes and Jim Fitzpatrick, where they will discuss the verdict and its wider implications. MP Christine Jardine, the Liberal Democrats’ spokesperson for Work and Pensions, has already stated that the decision should shame the government and that employment rights should now be strengthened to shift the burden of proof at employment tribunals onto employers.
The National Gallery says it is “considering the detailed implications of the decision with its legal advisers” and will not comment further at this time.