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NUJ wins member £8360 back pay

When is a contract not a contract?

When is a contract not a contract? When the clauses do not reflect the reality of the working relationship.

This was the decision of an employment tribunal when it ruled that NUJ member David Walsh was a "worker" despite what his contract tried to say.

David had worked shifts on a casual basis for The Scotsman for several years. He had asked for holiday pay on a number of occasions but was refused on the grounds that he was self-employed.

The company's stance depended on its standard freelance contract, which states that the freelance is self-employed and an independent contractor.

The tribunal ruled that the reality was different; that David met the statutory definition of "worker"; and that he was entitled to paid leave. As he was not afforded this right during his engagement, Mr Walsh was awarded £8360 in compensation.

The case was made unusually complicated by the fact that the company in question, Johnston Press, is now in administration. Compensation must be recovered from the National Insurance Fund.

As the NUJ's national organiser for Scotland, I note that we were always confident that Mr Walsh was a "worker", and that the wording of the agreement did not get around this basic fact. The agreement in question is still in use by JPI Media, and the judgment could have implications for other freelances.

The best way for any company to avoid legal action would be to negotiate freelance contracts with the NUJ.

David Walsh was represented by Thompsons Solicitors, and we thank them for their sound advice and representation.