FAQ's
Q. My employer says I am a freelancer but I think I am an employee. What am I?
Q. What is a compromise agreement?
Q. On leaving the Agency, do I have a right to put together my portfolio?
Q. I have been working on a major account and now the client wants me to work directly for them rather than through the Agency. Am I allowed to do this?
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Q. I am in a creative team at a major London agency. My partner and I have been told that our jobs are at risk of redundancy. What process should the agency follow?
A. A fair procedure for redundancy must include the following three important requirements;
- Adequate consultation: This means ensuring that all the creative teams are notified as soon as redundancies have been considered as a possibility by the agency. A series of meetings should follow in which you are entitled to raise any questions.
- Fair selection: Your employer should use fair, objective and transparent criteria in deciding which team to make redundant.
- Consideration of suitable alternative employment by the agency: The employer has a duty to consider what suitable alternatives may be available, including any vacancies in other offices of the agency.
If you are selected for redundancy, you are entitled to a redundancy payment if you have been an employee for a minimum of two years.
First check your contract or handbook to see if there is an enhanced contractual entitlement to redundancy pay. If there is no enhanced redundancy pay you are entitled to a statutory minimum redundancy payment of L290 a week for each completed year of service for employment when you were between the ages of above 20 years old and below 41 years old. For service below 20 years old you are entitled to L145 for each year of service and for service above 41 years old you are entitled to L435 for each year of service.
You are also entitled to your notice in addition to redundancy pay.
Q. My employer says I am a freelancer but I think I am an employee. What am I?
A. The labels used in contracts, or by your employer or yourself, are not of themselves necessarily accurate. Ultimately, the only way definitively to establish your employment status is to request a determination from an employment tribunal.
The tribunal will be swayed by such factors as the amount of control your 'employer' has over your work and whether there is a “mutuality of obligation” between the agency and you. This is an assessment of the duties you owe your employer, and that your employer owes to you (eg whether you have to turn up for work, and if your employer has to pay you). Another factor is if you personally must perform your work, or whether you can send someone in your place. If these factors are present you are more likely to be considered as an employee.
Q. I am aged 45 and am a high earner in my agency. Most people in my agency are far younger than me. I have been told that I am going to lose my job because I am too expensive. Is that fair?
A. It certainly doesn't sound fair, and it may even be unlawful under new age discrimination legislation. If your employer is cost-cutting and you have been selected for no reason other than your salary, that may be age discrimination and therefore unlawful.
This is because your employer has adopted a policy which will disadvantage a greater number of employees in your age range. The law requires companies, if they are to follow a redundancy, to use criteria which do not adversely affect a certain age group unless it is absolutely necessary. If your employer cannot justify the policy objectively they may have unlawfully discriminated against you.
Q. I am a senior employee on maternity leave. I am due to come back to work soon but want to work part time. How should I raise this with my boss?
A. There is a formal process under the Flexible Working Regulations that you must follow. You have to complete a written request and submit it to your employer. Your employer must invite you to a meeting to consider your response. The employer is entitled to refuse your request if e.g. there is a detrimental impact on the quality of your work. There are several factors that an employer can take into consideration. However, if there is not a sound justification for the reason given to refuse your request, this may be indirect sex discrimination, which is unlawful.
Q. I have been unfairly told that my work is not to a good enough standard even though I had a good appraisal 3 months ago. What should I do?
A. You may wish to consider lodging a formal written grievance to register your unhappiness at the arbitrary way in which you have been treated. Your employer should invite you to a meeting to discuss your complaint. You are entitled to be accompanied by a co-worker or a trade union representative. You will have an opportunity to state your case and listen to your employer's response. If you are not satisfied with the outcome you are entitled to appeal the decision and the appeal should be heard by a different person.
Raising a grievance can be a useful means of collecting evidence that you have been unfairly treated and can be used in a later claim.
Q. What is a compromise agreement?
A. A compromise agreement is a legally binding agreement between an employer and employee in which the employee agrees to accept certain payments and agrees not to pursue any claims against the employer.
For a compromise agreement to be binding it must identify the employee's solicitor to show that the employee obtained independent legal advice.
If you have been asked by your employer to sign up to a compromise agreement you probably need to act quickly, and instruct a solicitor without delay.
Q. My creative team is never asked to work on the interesting accounts. We are not getting enough work. All the good work gets channelled to other teams. What should I do?
A. Keep a careful record of what work is being allocated to you and if possible, work being allocated elsewhere. Start a paper trail raising your concerns indicating that you have capacity and you are willing and able to work on additional work and hopefully the good work. It is essential to keep a record in writing of your concerns.
The aim is to avoid a situation where the company say that there is a straightforward redundancy because your team has not been doing any work.
Q. The client has asked me to be removed from an account. It is the main part of my job. The Agency say they have no option but to comply with the instruction. I am worried about losing my job.
A. The agency may be able to say that they have no option but to comply with the instructions otherwise they risk losing the account. However, even if that is the case, the agency should make every reasonable effort to find you additional and alternative accounts. If, because a client has asked for you to be removed from an account, the company seek to argue that you are redundant, then you should take careful legal advice because there are likely to be significant arguments that the redundancy is unfair in all the circumstances.
Q. On leaving the Agency, do I have a right to put together my portfolio?
A. Strictly speaking, “no”. This is because the information and materials to go in your portfolio are the property of the Agency.
However it is unambiguous custom and practice that on leaving an agency the individual is allowed to put together a portfolio and it would be exceptional if the Agency refused to allow this.
Q. We have new a Creative Director who is bringing in his own team. I am obviously worried about my job.
A. If, because of the new people, the company seek to argue that you are redundant, you are likely to have strong legal claims for unfair dismissal and possibly discrimination. This is not a simple redundancy because the work that you have been required to do has not ceased or diminished. It is just being done by different people. Why had the new Creative Director brought in his own team? There may be some age discrimination issues which should certainly be considered very carefully. For example, the new Creative Director may think that those teams which had been in the company for many years have caused the company to be less dynamic. However the existing people may well be of a certain age group because of their long service which means that if they are treated worse than others, age discrimination law is triggered.
Q. I have been selected for redundancy because I have been told that I am no longer producing the goods and have lost my creative edge. Can they do this?
A. The dismissal may well be unfair and possibly unlawful under the age discrimination regulations. In our experience, many agencies fail to follow proper performance procedures, and fail to do appraisals on any regular basis. This may well mean that, in a situation where the company suddenly announces that you have lost your creative edge, they are unlikely to have any objective evidence to back this up. In order to assess your legal claims, you should take proper advice.
Q. I have been working on a major account and now the client wants me to work directly for them rather than through the Agency. Am I allowed to do this?
A. You need to check your contract of employment and in particular any restrictions which are intended to apply after the termination of your employment. Even if there are restrictions, the next question is whether those restrictions are reasonable and a court will only uphold restrictions if they are considered to be reasonable. This requires a careful assessment. The courts will not uphold restrictions which go beyond protecting legitimate business interests.
Even if there are potentially lawful restrictions, is it realistic in the business world for an agency to seek to stop a client from engaging you to work for them, if that is what the client wants? It may well be the case that in the end an agency would be very reluctant to take legal action stopping the new arrangement.
If you would like further information on any of the questions raised above or would like to discuss a concern you have, please contact us on 0800 916 9015
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