Creative freelancers at the BBC say they deeply resent the broadcaster’s decision to change how much they are allowed to charge on their monthly invoices.
Freelancers learnt of the change when the corporation told them to break down their personal pay rate into a basic rate, to account for holiday pay at 10.2%.A seemingly identical practice is called ‘rolling up’ holiday pay. This sees the employer replace the legal minimum of four weeks' holiday leave with an allowance instead, which is paid while the freelance is working.
Therefore, not only is the holiday allowance included to make up the worker’s ‘normal’ rate, but also when the worker does take a holiday, they receive no payment separately.
Since a European Court of Justice ruling in 2006, ‘rolling up’ holiday pay – where minimum leave is replaced by an allowance in lieu – is unlawful, except at termination.
Under the Working Time Regulations, which implement the Working Time Directive in the UK, workers are entitled to actual rest, with a view to protecting their personal health and safety.
Bectu, the broadcast union, says it is challenging the BBC over its decision to change the way invoices should be presented, a move it said was “deeply resented” by its freelance members.
“The BBC’s instruction is a de facto reduction of freelance rates,” the union added, “ [which is] driven by the BBC’s past failure to treat freelance workers’ holiday entitlement properly.”
Asked to explain the BBC's apparent 'form' with freelancers' holiday pay, Martin Spence, Bectu’s assistant general secretary, reminded that freelancers are eligible for holiday entitlement, usually in the form of holiday pay, under the Working Time Regulations
He told FreelanceUK: “This should be clearly understood at the time of an engagement and clearly expressed in contractual paperwork. Some BBC departments have done this, but others haven’t.”
For employers to comply with UK (and European) law, holiday pay must be a payment in respect of a specific period during which the worker actually takes leave from work.
Roger Sinclair, legal consultant with Egos, said: “Either freelancers are entitled to it [holiday pay] - which they are, if they qualify as a ‘worker’ under the Working Time Regulations - in which case it has to be paid lawfully - or they are not.”
Media law firm Olswang says employers who currently ‘roll up’ holiday pay will need to change their working practices, as workers will be able to bring claims (since the ECJ ruling).
When asked about its new instruction that freelancers account for their holiday pay on their monthly invoices, the BBC responded by saying it was not acting unfairly or unlawfully.
“We are confident that we are paying our freelancers fairly, competitively and within the law,” a BBC spokesperson said.
In response, Bectu argued that BBC freelancers with established personal rates, which the broadcaster paid in the past, should still be able to regard this as their basic rate, excluding holiday pay.
The union said it plans to meet senior management at the BBC to discuss the issue, which Bectu warned has led to “bad feeling” among the BBC’s “considerable” freelance workforce.
Yesterday the BBC moved to reassure freelancers. In a statement, it said: “We hugely value the vital contribution freelance staff make to our programme production.
“We believe this is reflected in the terms and conditions which compare favourably with the majority of production houses and companies in the UK.”