Many IPSE members will be aware of the recent case of Miriam O`Reilly, a freelance television presenter on the BBC’s ‘Countryfile’. O`Reilly took the BBC to an employment tribunal claiming discrimination on the grounds of age, and won.

To many freelancers this may seem odd – why would a freelancer be able to go to an employment tribunal? And why would the BBC have any duty to provide something that may appear to the casual observer to be ‘employee like’ rights?

At IPSE, we have examined the case closely and come to the following conclusions:

1. Freelancers are workers not employees

In actual fact the Miriam O’Reilly judgement should not come as a surprise to the freelance community as anti-discrimination guidance in the UK is often very broadly drafted.

This means that although freelancers do not have employment rights (such as entitlement to sick pay and holidays), they are within scope of many anti-discriminatory measures. Discrimination legislation and regulations relating to health and safety apply to all “workers,” regardless of their employment status, even applying to those trading under a limited company.

As suggested above, Freelancers are not “employees” but are often counted as “workers.” Where discrimination legislation applies, they are therefore in some cases able to take their ‘end client’ to an employment tribunal.

Therefore, the tribunal is not an unprecedented act.

2. The case does not have wider ramifications

In the case of Miriam O`Reilly, the tribunal found that she had indeed been discriminated against on grounds of age. The tribunal noted that

The Employment Equality (Age) Regulations 2006 ("the Age Regulations") render unlawful certain forms of age discrimination. They apply in the context of applicants and employees pursuant to Regulation 7. The parties accepted that the definition of employee is wide enough to include "freelance" workers such as the Claimant.....”

This may initially appear as quite an alarming statement - freelancers absolutely are not employees in any sense, as mentioned in point 1, they are in business on their own account. However, closer inspection shows that the regulations apply to

“employees pursuant to Regulation 7.”

Regulation 7 states that

“in [the legislation’s] application to contract work, references to “employee”, “employer” and “employment” are references to (respectively) “contract worker”, “principal” and “contract work”

This means that the term “employees” in the context of this legislation only, is simply being used as a shorthand/placeholder for ”workers”, “contract workers", etc, of which Miriam O`Reilly was one.

Therefore the judgment cannot be extended to define “freelancers” as “employees” for other purposes or in other laws - when the tribunal makes reference to Ms. O`Reilly as an “employee” it does so only “pursuant to regulation 7”, not generally. This is because in this legislation a “contract worker” and an “employee” are treated in the same way.

3. Miriam O`Reilly was not a traditional “freelancer”

Increasingly, law courts look to “substitution” as a test of status in such cases. Miriam O`Reilly clearly could not send a substitute to do her work, because her specific talents were being requested by the BBC. This made it even easier for the court to find in her favour.

In addition “freelancing” as it is traditionally understood, is radically different in the media compared to other fields. Freelance journalists have working practices and contracts quite unlike those of an IT contractor for example, and courts tend to recognise this.

A recent case “Tilson v Alstom Transport” which went all the way to the Court of Appeal last year demonstrates this perfectly. Tilson, an engineering contractor, accused Alstom, the end client, of unfair dismissal. The court found clearly in favour of the end client demonstrating that contractors are generally not entitled to employment rights. It established that, as a freelancer without a contract of employment Tilson was not entitled to the same protections and rights as an employee.

“Human Rights” - i.e. rights pertaining to discrimination and health and safety provision - apply to all workers however.

Conclusion

The Miriam O`Reilly case therefore does not represent any change in the way contractors will be treated, and it largely follows existing legal trends. Contractors are by and large entitled to the same rights as any other worker with regards to discrimination on the grounds of age, sex, and race, and with regards to health and safety legislation. This does not mean they are entitled to employment rights and has no bearing on IR35 status. Contractors can therefore rest easy in the knowledge that this case will not affect the way they are treated by their end client.

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