Stephen Miller: Short-term employees have to fight harder for their rights

Another year, another Festival is over. We've seen countless shows, daring street performers and jaw-dropping circus skills but one thing that doesn't always make the front page is the plight of the workers who are, quite literally, working behind the scenes, fighting for their employee rights.

Stephen Miller is an Employment Law Partner with Clyde & Co

The arts industry depends on freelancers and fleeting engagements with production technicians who split their time, frequently flitting between different productions. The Edinburgh Festival is no different.

This phenomenon has meant that short-term employees have to fight a lot harder to enforce their rights when compared with employees in more pedestrian occupations.

As a result of Brexit, interest has been revived in one such struggle from the turn of the century, that of holiday pay.

The UK Working Term Regulations: At Europe’s insistence, workers in the UK were granted the right to paid annual leave – thus introducing the UK Working Term Regulations. These regulations stipulated that a worker had to pass a service threshold of 13 weeks to enjoy this right. Although this qualifying period passed quickly for most employees, for the peripatetic technicians, it was rare to find a production which lasted long enough to yield any paid holiday.

The claim: The Broadcasting, Entertainment, Cinematograph and Theatre Union (BECTU) has about 30,000 members working in the broadcasting, film, theatre and related sectors in jobs such as sound recordists, camera operators, special effects technicians, projectionists, orators, hairdressers and make-up artists.

With the help of BECTU, production technicians sued the government, accusing it of introducing an unnecessary and, for their members, prohibitive service threshold, when no such precondition was stipulated in the Working Time Directive promulgated by the European Parliament.

After a referral to the European Court of Justice, the claim succeeded.

One important aspect of the claim which influenced the judges was that the entitlement to paid annual leave was recognised as a fundamental social right, protected by what was then called the Community Charter of the Fundamental Social Rights of Workers.

The European Court of Justice considered that this meant that the right to paid leave was an automatic and unconditional right granted to every worker.

What rights do you have?

The present equivalent of the Community Charter is known as the Charter for Fundamental Rights.

The United Kingdom government has indicated in the European Union (Withdrawal) Act that Charter rights are not part of domestic law.

Although citizens of the UK do not have their charter rights enshrined by the legislation governing our exit from the European Union, this might not matter. It is thought that citizens of the United Kingdom might, by relying on the BECTU litigation, establish that they already have and enjoy charter rights and that the UK government cannot lawfully remove them.

So, if you have enjoyed a few shows this last month in the capital, do spare a thought for the unseen crew who, by their actions, have been trailblazing on behalf of the citizens of the United Kingdom.

Stephen Miller is an employment law partner with Clyde & Co