New UK Employment Rights Bill: Significant Reform for Film & TV's Self-Employed?

On October 10 the UK government published the Employment Rights Bill, legislation which stems from many years’ work by the trade union movement around the New Deal for Working People.

The creative industries, which have long awaited reform around self-employed rights, will have read the bill with interest. Indeed, union bodies such as Equity and Bectu are highly supportive of Labour’s manifesto commitment to reform rights for the self-employed, who make up such a significant part of the creative industries.

While publication of the bill marks the start of a long process of reform and secondary consultation on a multitude of complex issues, the creative industries may be disappointed (albeit unsurprised) to see many of the big decisions around reform for the self-employed left out of Labour’s first 100-day commitment to ‘make work pay’.

The highly anticipated Employment Rights Bill contains a cohort of 28 reforms detailing some major changes to UK employment law. However, the focus of the announcement was primarily on strengthening protections for ‘employees’ AKA ‘workers’ versus substantial reform for those who are ‘self-employed’ or ‘freelance’.

Key reforms for employees

The new bill, while progressive, is primarily focused on enhanced benefits and protection for ‘employees’ (i.e., those who are contracted as employees by a hirer) versus ‘workers’, who are not entitled to full employee benefits.

Labour reminds us at the beginning of the bill that the definitions of ‘worker’ and ‘employee’ remain as written in the 1996 Employment Rights Act.

A key focus area within the new bill is the government pledge to end 'one-sided flexibility’, particularly by ending the practice of 'exploitative' zero-hours contracts. This means that workers are now entitled to demand a guaranteed hours contract (i.e., a worker has a choice of either a guaranteed hours contract or a zero-hours contract if that is their preference).

The government is also looking to end the practice of 'fire and re-hire', meaning that workers will be better protected against unfair dismissal, with protections starting from their first day of work. However, as a last-minute concession to big business, employers will be able to keep new hires on probation for as long as nine months.

The government’s promise to introduce basic individual rights from day one for all workers has put an end to the existing two-year qualifying period for protection against some forms of unfair dismissal and the one-year wait for parental leave. From the get-go, workers are also entitled to better maternity and bereavement leave and are further protected against dismissal during pregnancy.

Additionally, workers now have the right to request flexible working, provided they can prove that to do so would not be detrimental to the company and they could still fully perform their role under a flexible structure. The government defines ‘flexible working’ as a way of working 'that suits an employee’s needs' (e.g., having flexible start and finish times or working from home).

Sexual harassment is another key area of reform. From the October 26, 2024, there is a new duty for employers to take reasonable steps to prevent sexual harassment in the workplace.

The Employment Rights Bill introduces several significant changes to harassment under the Equality Act:

• Employers must take all reasonable steps to prevent sexual harassment. However, the government has yet to define the parameters of ‘reasonable steps’.
• Employers are now liable for third-party harassment and must take all reasonable steps to prevent it. ‘Third-party’ is defined broadly as anyone who is not the employer or an employee of the employer.
• A disclosure about sexual harassment is now a ‘protected disclosure’, entitling anyone who makes one to protection under the current whistleblowing regime.

While these reforms have been welcomed by the majority of unions and campaigning organisations for workers’ rights, these changes require robust and consistent enforcement from employers to succeed.

With this in mind, the government is seeking to establish a Fair Work Agency to enforce this legislation and monitor other changes, such as changes to National Minimum Wage age banding and regulating agency workers. It will also provide – for the first time – a mechanism to enforce holiday pay.

It is unclear from Labour’s bill whether this new Fair Work Agency will be significantly more resourced than current government bodies which perform similar activities, such as monitor national minimum wage. One can only assume that it will take some time to set up a new central regulatory body for these significant areas.

What are the new legal protections for the self-employed?

All this said, questions remain as to how this bill is meant to enhance working conditions for the self-employed, especially as Labour has previously asserted a strong commitment to improving the livelihood of freelancers in acknowledgement of their highly valuable contribution to the UK economy.  

Some changes within the bill are designed to help the self-employed; however, these reforms are much lighter on detail than others, particularly concerning how they will be implemented and enforced. This is indicative of how nuanced the self-employed space is and how unsuited it is to blanket reform, something sceptics were quick to point out when Labour originally announced the high-level detail for the ‘New Deal for Working People’.

As it stands, confirmed reforms for the self-employed include:

• Health and safety: enhanced health and safety requirements for hirers to ensure that the self-employed are better protected within the workplace regardless of their employment status.
• Blacklisting protections. in an attempt to rebalance the relationship between the self-employed and a potential hirer or client, the government is implementing new protections around blacklisting. The goal of these is to better enable a self-employed worker to feel able to raise grievances against behaviour such as bullying and abuse without the worry of this having significant repetitional and financial impact. For those working with communities in the gig economy or who run employment agencies, this is a particular one to watch as it evolves.
• The right to a written contract: there is currently no legal obligation for a freelancer to have a written contract with their hirer or client. As a result, some engagements are undertaken without clear parameters regarding the work involved, time commitment expectations or clear details around pay and remuneration. Enforcing a written contract should reduce any disputes between the self-employed and the hirer. There is however minimal detail on how exactly a written contract is going to be enforced and where the responsibility for enforcement will lie.

What didn’t make the cut in the new bill?

Single worker status

While the above will improve working conditions for the self-employed, most notably, Labour has refrained from addressing the ‘single worker status’ in this initial bill. Instead, any changes to the tax status of self-employed individuals have been relegated to a ‘next steps document’, with Deputy Prime Minister Angela Rayner stating that the level of legal complexity around the issue requires more detailed consultation with industries that rely on the gig economy.

The initiative to move towards a ‘single worker status’ at the highest level seeks to improve rights for those on self-employed contracts, who primarily work for one hirer, yet receive significantly less benefits than their permanently employed colleagues. However, at the root of this issue, there is a strong concern that blanket reform in this area could be hugely disruptive to those who work for multiple clients or hirers at once, which is common in film and TV. Many will be disappointed, but it’s unsurprising that Labour needs more time to assess how gig economy workers should engage with employee-level employment protections.

Right to switch off

The ‘right to switch off’ – which aims to stop employers contacting staff out of hours via phone or email and is reminiscent of US-style federal laws around contact out of hours – has also been paused, requiring much more significant consultation. The government plans to follow a similar model to those already in place in countries such as Ireland, where – for example – a non-binding Code of Practice requires employers and employees to produce a tailored policy for their workplace.

Other ‘next steps’ reforms include:

• Delivery of the Equality (Race and Disability) Bill (i.e., extending pay gap reporting to ethnicity and disability for large employers).
• A full review of the parental leave system and of carer’s leave. 
• Consultation with the Advisory, Conciliation and Arbitration Service (ACAS) on enabling employees to collectively raise grievances. 

It’s a marathon, not a 100-day sprint!

Those benefiting most from Labour’s first round of employment reform will be those on the lowest pay with the least amount of security around their hours and working conditions. Reform of zero-hours contracts and a move towards significantly enhanced employee rights from day one will drastically improve the circumstances of the most vulnerable and those more likely to experience discrimination and harassment during employment.

However, those within the gig economy and the self-employed – including the majority of the creative industries – will be left wondering how and when Labour plans to make more drastic reforms to their circumstances. The first round of legislation may not be implemented until 2026, so we may have a long wait until these thornier topics are addressed. What remains a potential blocker to successful reform for the self-employed is the intense dichotomy between Labour’s promise to be both pro-worker and pro-business. Reconciling these areas will be key to delivering positive change to gig-economy workers without limiting their financial and professional freedom. 

The previous Conservative government’s 2018 auto-enrolment legislation dabbled in blanket reform without accounting for the nuance of self-employed workers who have brief engagements with multiple hirers, including those in the creative industries and those engaged for their services through online platforms. Any future consultation in this space must therefore include the creative industries, which have unique nuances when it comes to employment.

Encouragingly, PACT has stated that it has “already been in discussion with officials from the Department for Culture, Media and Sport (DCMS) and Department for Business and Trade (DBT) to explain the project-based nature of members’ work and how this leads to shorter engagements with different employers”.

While additions to the bill, such as rights to written contracts and better protections against blacklisting, are a nod to a more secure future for the self-employed, these reforms are minor compared with Labour’s initial commitments in its manifesto.

Phillipa Childs, Head of Bectu, has reminded Labour "not to leave freelancers out in the cold". She says:

“Labour has professed to be the party of the self-employed – the devil will now be in the detail of how the government intends to deliver for the freelance workforce.

“We note the promise of a full and detailed consultation on reforming worker status. It’s crucial to get this detail right to avoid unintended consequences for the UK’s freelance workforce, and we stand ready to work with Labour on making work better for our members.” 

Single worker status also remains one of the most pertinent issues for Equity, which, while welcoming the initial reform, has said:

“The Bill does not include an end to the distinction between a ‘worker’ and an ‘employee’... Equity supports Labour’s policy to remove this distinction but it’s welcome that the direct engagement with the Deputy Prime Minister Angela Rayner, as well as ministers from across her team, is leading to serious thought as to how this change can be implemented in a way that supports Equity members’ unique tax status.”

Clearly, there are mixed feelings about the impact that ‘single worker status’ could have on different industries. Labour will likely now embark on an extensive consultation process to try and pave a way forward on an issue where it has made a significant commitment to drive change. While it remains to be seen how long it will take Labour to work through these issues, it will certainly be much longer than its first 100 days in office.

This article contains general information we are providing on a subject that may be of interest to you. Nothing in this article should be considered employment, tax or legal advice. You should consult with your own employment, tax or legal advisers regarding the applicability of this information to your specific circumstances.