Art historian Richard Stemp is delighted to be classed as a ‘worker’ rather than freelancer. One of 27 former National Gallery educators who took their case to an employment tribunal and won, he expects February’s ruling to have a ripple effect in the cultural sector. ‘We’re hoping that it will have profound implications in the future,’ he says. ‘Other bodies will have pricked up their ears.’
In his ruling, the tribunal judge explained that rather than Stemp and his colleagues – known as the NG27 – being self-employed as the National Gallery claimed, they ‘worked ‘for’ the Gallery as members of its team of educators’, and should consequently be classed as workers. Under UK employment law, this affords you certain rights that a freelancer doesn’t have. Statutory minimum holiday pay is obligatory, and in some cases sick pay, maternity pay, and a pension. Despite paying taxes through the payroll in the same way as employees, none of the NG27 were receiving any of these benefits when their existing arrangements with the gallery were ended in October 2017 and they were offered new terms which they deemed unacceptable. Collectively they had worked for the gallery for over 500 years – one individual for more than 45 years.
Stemp had been part of the team organizing gallery tours and other educational work for 24 years. ‘The fact is that when I started working at the National Gallery the status of worker did not exist,’ he says. ‘It had to effectively be introduced to cope with people like us who were somewhere between being employees and being self-employed sole traders.’ While the exact implications of the judge’s decision remain unclear, Stemp’s optimism about its impact seems well founded. Adam Ohringer, specialist employment barrister at Cloisters chambers – which worked on the NG27 case – says that the term ‘freelancer’ is increasingly a misnomer. ‘Often freelancers should be properly regarded as workers and are entitled to various rights associated with that status,’ he says. Ohringer believes that cultural organisations should be conducting an extensive audit of their staffing arrangements to establish if there are individuals who are in fact either workers or employees rather than freelancers. He is sceptical, however, about the cultural sector’s willingness to address this issue. ‘It seems that there are many cultural organisations that are yet to do this. Is it possible that galleries and art experts, for example, are thought to be above this type of bureaucratic wrangling?’
Following the ruling, a statement from the National Gallery attempted to put a positive spin on things by welcoming ‘the clarity provided by this decision, namely that the claimants in this case were not employees of the Gallery’. It is, though, currently ‘considering the detailed implications of the decision with its legal advisers’ and was unwilling to answer further questions from frieze. It is possible that the NG27 will receive backdated holiday pay for the period they were working for the gallery, and although this is unlikely to be very much individually due to their part-time status, collectively it will be a significant amount.
Clearly a sector that relies so heavily on casual working and freelance contracts has good reason to feel nervous about such a high-profile national museum having its employment practices challenged in this way. With cuts in state funding and pressure on private giving due to ethical and political concerns, the increased costs that worker or employee status could bring would surely have an impact on many organizations’s ability to operate. Yet the current situation, whereby freelancers often work as part of a team alongside employees but do not enjoy the same level of job security or benefits, looks increasingly untenable. Sharon Neal, director of the Museums Association, believes that a sector that thrives on a mix of ‘freelancers, consultants, employees and volunteers’ needs to be mindful of the ruling. ‘The Museums Association believes that everyone who works in and with museums should be treated fairly and with respect,’ she stresses. ‘‘The ruling may well have far-reaching implications for museums and galleries who will now have to think about the terms and conditions for everyone that works with them.’
For Stemp, the profile of the National Gallery is key to any possible wider-reaching impact the ruling may have. ‘As a national institution, everyone will be looking at what the National Gallery has done and how it now responds.’ He talks of ‘remarkable support’ for the NG27 case across the arts, with a CrowdJustice page raising over GBP£75,000 to fund legal costs of the tribunal. ‘For people in our situation in the future the hope is they will be better treated, they will be more highly respected, and systems will be put in place so that people are employed properly and treated properly.’ Ohringer, meanwhile, believes there may be more legal challenges to come. ‘It is very likely that there are guides, explainers and other experts who work for other institutions and have been classified as independent contractors or freelancers,’ he says. ‘Many of them, perhaps most, are in reality workers. Such individuals or groups can bring claims to the employment tribunal to assert their rights and many of them will be successful.’
Main image: National Gallery 27. Courtesy: Jo Hone Photography