Employment lawyer says BBC wrong not to furlough PAYE freelance journalists

An employment lawyer has said he believes the BBC was wrong not to furlough its freelances who work on PAYE contracts.

Andrew Allen QC, of Outer Temple Chambers, claimed these workers “fall squarely” within the guidelines outlining who could be helped by the Government’s job retention scheme during the Covid-19 pandemic.

Private companies are able to furlough freelances if they were working for a company at the scheme’s cut-off date.

But the BBC has repeatedly said it was advised by the Government that the public service side of the organisation is ineligible to use the furlough scheme. Its commercial arm, BBC Studios, has done so.

More than 150 BBC PAYE freelances who are struggling to get work or financial support since the coronavirus outbreak began are now considering bringing a legal case against the BBC.

Allen, who was called to the bar in 1995, put together a legal opinion for the prospective case concluding that the BBC’s position was not correct.

This has been sent to outgoing BBC director-general Tony Hall, whose response will determine whether the case is pursued.

Allen wrote: “The most that can be said is that according to the guidance (which is not the law) the Government has an expectation that public sector organisations will not furlough workers who could provide essential public services or contribute to the response to the coronavirus outbreak, whilst receiving public funding for those activities.

“Expectations are not always met and in any event, given the necessary reduction in programme production as a result of the pandemic, the work done by the workers involved in this prospective case could not continue.

“In my opinion these workers fall squarely within the category of ‘worker who can be furloughed’ both in the letter and the spirit of the legislation, Treasury directions and guidance.”

A BBC spokesperson said today: “The BBC has set out the position on this several times. We are hugely sympathetic, and have taken direct action to support this group including honouring cancelled work until the end of May and setting up a hardship fund.”

The BBC told Press Gazette last month it had been advised by the Government it was not eligible to apply for the furlough scheme, adding: “Unfortunately the BBC does not have any discretion in this.”

Despite this, last month a Department for Digital, Culture, Media and Sport employee told BBC Sport freelance assistant producer Matt Walker, who is one of those lobbying for support, that the decision remained with the BBC.

“The Government is encouraging employers to re-employ staff, however, the decision to place employees on furlough remains with the employer,” they said.

“This also applies to the BBC, as it is operationally and editorially independent from the government, and it would, therefore, be inappropriate for the government to comment on, or seek to intervene in, the BBC’s operational decisions.”

A World News freelance, who we are keeping anonymous, said on Saturday they would no longer work for the BBC after what they described as its “undignified” approach to the situation.

In a mass email sent to some 300 members of staff, they wrote: “I don’t want to continue at the BBC in this undignified capacity; undignified because management has undermined mine and PAYE freelancer’s dignity.

“We feel our concerns over furlough, our livelihoods, our health and financial security, have not mattered.

“Hiding behind feigned sympathy for our plight and tossing us a few shifts… and knowing full well we were struggling to make ends meet is not how a caring employer behaves.”

Outside the BBC, journalists who earn the majority of their income through PAYE are unable to obtain Self-Employed Income Support Scheme.

Picture: Reuters/Peter Nicholls