In a climax to a legal battle that began more than a year ago, a court has granted 27 former educators at London’s National Gallery the right to be treated as workers, not freelance contractors. The group argued they should have been entitled to the same benefits—such as paid vacation—that staff members enjoy. Experts say the ruling carries important implications for the gig economy in the public sector.
The 27 artists, art historians, and lecturers that came to be known collectively as the NG27 have more than 500 years of combined experience working at the National Gallery, which is funded by the UK government’s Department for Digital, Culture, Media and Sport.
In the suit, heard by the court in November, the group argued that they were improperly classified as freelance workers, even though they were paying taxes through payroll as employees. By designating them as self-employed, they claimed, the gallery was unfairly denying them benefits including paid vacation time, sick pay, pension, and maternity pay.
They sued after they say they were “abruptly” fired in October 2017, when the institution decided to transition from offering ad-hoc work to more secure employment. (The gallery claimed it offered the new deal to all formerly freelance staff.)
The judge on the employment tribunal sided partly with the workers and partly with the gallery. In yesterday’s ruling, he dismissed the claim that the educators were unfairly fired. But he concluded that it was “unsustainable” for the National Gallery to maintain the position that they were self-employed. He said that the group should be classified as “workers,” a designation that holds more rights than freelancers but fewer than full-time “employees.”
The benchmark case is thought to be the first ruling against the so-called “gig economy” in the public sector. It follows several high-profile cases from the private sector involving companies that employ workers as independent contractors, such as the ride-share service Uber. A specialist employment barrister, Adam Ohringer, called the ruling “a wake-up call to the public sector” and predicted the case would be the first of many involving public bodies misclassifying their staff to avoid according them employment rights.
“In short, the Claimants worked ‘for’ the Gallery as members of its team of educators,” the judge 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 undertaking’ carried on by any of the lead Claimants.”
For its part, the National Gallery said it acted “lawfully and fairly” in changing its employment structure, and welcomed the court’s dismissal of the claim that the workers were unfairly terminated. A spokesman defended the institution in a statement, arguing that the case should not be linked to the debate around the gig economy given that the workers were offered more secure employment in place of their previous ad-hoc agreements.
“We have taken a deliberate choice to move towards a model that offers people secure employment, with additional pension and worker benefits,” the spokesman said.
While the ruling will inform the way museums approach their administration going forward, the NG27 has still yet to determine whether they are entitled to backdated vacation pay or other benefits. They have also not yet decided whether to appeal the decision to seek the higher classification of “employee” rather than “worker.”
In a statement, Karly Allen, who worked for the gallery for 18 years, thanked people who contributed to a crowdfunding campaign to cover legal fees, but was muted in her celebration of the ruling. “This judgement cannot take away the fact that we have lost our jobs and the close relationship with the Gallery which we loved,” Allen said. But she added, “It does go some way to acknowledge the losses we have suffered and our contribution to the life of the Gallery.”
Marie van der Zyl, a partner at the law firm that defended the workers, said in a statement that the case is an important one for people with “unconventional” working arrangements, adding that it should give “hope” to individuals unsure of their rights.
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