An employment tribunal has ruled in favour of a former Turner Contemporary ‘navigator’ after the gallery denied she was entitled to redundancy, saying she was not an employee due to her casual worker and zero hours contract status
Jan Wheatley was one of 40 workers who, in 2020, received an email informing them of the removal of gallery assistant and navigator roles with affected employees invited to apply for 16 newly created engagement assistant jobs with contracted hours.
The move meant the loss of around 24 roles and zero hour personnel ended up with no job and were told they were not employees so not entitled to redundancy pay.
Some staff were eventually offered settlements and Jan herself was offered £5,000 but says she turned the sum down to continue the tribunal process.
She said: “I just kept saying it was not about the money, it was the principle and so I held out. When they realised I was not going to play ball their solicitor sent me a letter saying I would have to pay up to £15k legal costs if I lost.
“I got a bit worried that I would end up with a huge legal bill but at the hearing the judge made it clear they should not have done that as it only applies under certain criteria such as being vexatious or slanderous or being brought when there is no chance of winning the case.”
Jan had worked for the gallery since shortly after it opened in 2011. Although shifts were on a casual basis she worked every month bar three for a period of almost ten years, fitting the shifts in around a full-time job she took at the visitor information centre from 2012 after it became clear Turner Contemporary would not offer her enough work on its own.
The role of Navigators was to deliver workshops, exhibition tours and school sessions and aiding group conversations for gallery exhibitions.
Navigators were also involved in planning and preparation for upcoming exhibitions.
Turner Contemporary claimed each shift was an isolated term of employment and shifts were not connected but in the tribunal judgement Judge Corrigan said: “The nature of the work was not one-off isolated shifts but part of a connected series of work over the course of an exhibition and beyond, and built on their experience over time.
“There were times when she (Jan) undertook leadership/facilitative roles or represented the organisation at external meetings and fed back to the respondent (Turner Contemporary). She was booked for shifts on particular projects/exhibitions. Some of these shifts were booked months in advance.”
Judge Corrigan also highlighted the employee and employer relationship did exist with Navigators named under the Our Staff section of the Turner Contemporary website, training sessions – some mandatory – inclusion on staff outings, having a staff email and retaining uniform and security passes between shifts.
There was also evidence of a work line manager and Navigators having staff one-to-ones. Turner Contemporary’s claim that there was not a line manager and it was “just that particular person’s manner” when dealing with others was rejected by the Judge.
The judgement says: “The claimant worked regularly and consistently for the respondent over a period of about 10 years in an ongoing relationship that had never been terminated. “Over those 10 years she worked every month, except 3, prior to the pandemic. She worked more some months than others, but was in continuous communication about her availability, and worked every exhibition throughout her employment and on other projects including the Youth Navigators project which ran over a period of years.
“Her work and role was integral to the structure of the organisation and the preparation and planning of its provision of exhibitions and other projects to the public. Her skills were clearly valuable in that preparation, planning and delivery.
“Despite the labels applied by the respondent her work was neither casual nor truly intermittent. It was regular part-time work.”
Judge Corrigan said Navigators had a staff discount, were paid by PAYE, engaged in staff consultation and the staff forum, and were included in social events and other trips. She also noted they were not issued a P45 at the end of every assignment.
She summarised: “Looking at the relationship overall, the obligations on each party, the integration into the workforce; the consistency and regularity of the work; the nature of the communication between the parties, the degree of control exercised by the respondent all point to an employment contract. The relationship was nothing like that of an independent contractor.
“I consider there was an employment contract in place throughout the claimant’s relationship with the respondent. I consider this persisted during the lockdown closure and the planned closure for works and was brought to an end when the claimant was informed her role no longer existed in January 2021.”
‘A horrible ordeal’
The day-long tribunal hearing took place in April but a decision was not issued until three months later. The judgement agreed that Jan was an employee and not working on a ‘contractor’ basis and she was awarded £745 redundancy pay.
Jan said: “The judgement was quite conclusive, the Judge heard and accepted my arguments. And it applies to everyone who worked there. A lot of people signed NDAs (non disclosure agreements) when they reached settlement but were rooting for me to win. I didn’t sign anything.
“There are still a handful of people who didn’t get anything at all. All staff laid off at the same time as me are entitled to redundancy pay and Turner Contemporary should apologise and pay them accordingly.
“If Turner Contemporary had done the right thing in the first place, offering the redundancy to us, it would have saved them a lot of money (in legal costs).
“I wanted to do as much as possible because those people who worked there were put through a really horrible ordeal.
“It is good going forward that zero hour contracts have been replaced with proper contracts but I expected some acknowledgement or statement from Turner Contemporary.
“They have a big mission statement about being part of the community and treating people properly – if you are going to talk that talk then you have to have that in practice in your workplace. A lot of people were shocked that they didn’t do that.
“We all worked there with love for the place and being treated like that cuts through to who you are and makes you question your worth.”
‘Commitment to continue to learn and to amend practices’
A Turner Contemporary spokesperson said: “Turner Contemporary accepts the findings of the tribunal and reasserts its commitment to continue to learn and to amend its practices, always striving to better serve our staff, artists, our local communities, national and international audience.
“The findings relate to a historic case and the new Director and senior leadership team continue to work to ensure that all staff are treated fairly, and with care and compassion.”