Mirror mirror against the wall

The sometimes sticky issues surrounding employment law are complicated and costly enough for the average HR manager, but for those who ply their trade in the media, it can be a profit-swallowing nightmare. Journalists, more than most, know a little of their rights.

By definition, a journalist will be a proficient researcher with good comprehension skills. They will have covered stories about tribunals and swingeing job losses, and will probably have made at least a cursory study of the law surrounding the issue. Most importantly they will have a list of expert contacts as long as their claim for unfair dismissal. HR managers in media need to press down hard when dotting the Is and crossing the Ts.

The coming summer will be ripe with headlines concerning these very issues as BBC staff – 400 journalists among them, according to the media business magazine Press Gazette, face widespread job cuts.

Fighting back
Individuals are fighting their corner and staff under threat are employing their collective resolution. In early April, more than 100 staff at BBC Scotland signed a statement of no confidence in controller Ken MacQuarrie, in protest at his plan to cut 195 jobs. The statement was passed at a meeting of members of three trade unions – Amicus, Bectu (the Broadcasting, Entertainment, Cinematograph and Theatre Union) and the National Union of Journalists (NUJ). It expresses dismay at MacQuarrie’s assertions to members of the Scottish Parliament at Holyrood that the cuts were non-negotiable.

Already in April,150 staff at BBC Scotland decided to not go gently into that good night, while some 100 Middle Eastern journalists are taking a stand against employers HH Saudi and their plan to move operations from London to Dubai.

And a 24-hour stoppage at the BBC on 23 May, organised by the same trio of media unions caused widespread programme disruption. A second two-day stoppage was delayed pending further talks. Essentially, unions are working to secure a guarantee that there will be no compulsory redundancies.

All cases are headline grabbers, as what journalists like most to write about is other journalists. And they can be PR disasters, as well as causing considerable embarrassment to management.

Costs can be considerable. Six-figure celebrity editors will require similarly sized severance packages. And they bring a lot to the bargaining table, not least their considerable media savvy and nose for a front page splash all things management can do without. Management need to be watertight to avoid such embarrassments, but a spate of recent spotlight examples suggest leakage.

Mirror image
Two cases from the recent past serve as illustrations of the right and wrong way to go about it. The Daily Mirror’s handling of the sacking of editor Piers Morgan, and its aftermath, serves well enough as a cautionary tale. After steadfastly defending his position for a week the editor finally conceded that yes, the photographs in the back of the van were fakes. His position was untenable. Management had to move fast, decisively and methodically to avoid an embarrassment. In this instance, two out of three ain’t bad, so to speak. Hot on the heels of agreeing a £1.7m pay-off to the, by now, infamous tabloid editor, Trinity Mirror received a 400,000 compensation claim from his deputy, Des Kelly.

Kelly left the company around the time when Morgan s successor was announced. A statement from Trinity Mirror said: “Des Kelly, who has been acting editor in the interim period, has decided to leave the company.”

Forced out
But it seems Kelly had his contract terminated and was asked to leave. Insiders at the Mirror have suggested that Kelly was forced out because management wanted someone more ‘amenable’ to forthcoming changes at the Mirror. Kelly threatened to take the parent company to a tribunal, but withdrew it when the £400,000 severance package was agreed.

In both cases, the size of the payouts are thought to reflect the fact that Trinity Mirror did not go through a formal disciplinary procedure before the sackings.

Tony Bertin, legal director of Employment Relations Solicitors in Kent, said at the time: “This sort of thing goes on all the time. Just because this guy was Piers Morgan’s deputy, doesn’t mean the company can dismiss him without a good reason.”

Trinity Mirror ended up paying more than 2m as a direct consequence of the departure of just two employees.

In contrast, the Daily Telegraph went about its recent round of redundancies with such speed and efficiency that by the time the staff voted to strike the cuts had been completed. Swift offers of voluntary redundancy were just as swiftly snapped up leaving behind an organisational nightmare. Out of a staff of 521, 135 union members were balloted and 74% came back in favour of a strike to protest the 90 redundancies, 80 of which were voluntary. But so many had left, union organisers among them, that they could no longer see the value in action.

All this and a timely management promise of no more redundancies for a year and full consultation about changes to conditions because of the cuts led the chapel to issue this statement: “This chapel reiterates its condemnation of the mass job cuts and the failure of the company to follow the proper consultation process. But, it welcomes the guarantees given on jobs and future consultation.Consequently, it resolves not to proceed with industrial action at this time.”

In March this year, the case of Sunday Times journalist Eben Black came before a tribunal. Black had claimed that his move from chief political correspondent to defence correspondent was tantamount to constructive dismissal. Black refused the move and was consequently dismissed for gross misconduct. Black claimed the move was a demotion but the tribunal found in favour of the Sunday Times. Black intends to appeal the decision concentrating on, among other things, a clause in News International contracts that governs whether journalists can be moved to other jobs – watch this space.

These already complex cases become more complex still when multiple claimants are involved. Up to 100 journalists from HH Saudi Research and Marketing are currently fighting for their jobs following the relocation of the firm from London to Dubai. This comes in the shadow of earlier redundancies, the terms of which are also being contested. The dozen journalists sacked by the firm are appealing through the NUJ. They claim their contract guarantees 20 weeks’ salary for anyone with more than six years’ service. The company, however, have offered the legal minimum payouts of 280 per year of service.
Details of specific cases are hard to come by. Most parties either choose to remain tight lipped or are forced to by the terms of their settlements.
One Fleet Street personnel manager puts at least some of the confusion down to the changing nature of the industry and, subsequently, work patterns in the media. She explains how the industry has focused on cost effectiveness, responsiveness and competitiveness resulting in a greater diffusion of open-ended employment contracts and an explosion in short-term, casual and freelance arrangements.
This view is backed up by a former broadsheet journalist who chooses to remain nameless for the sake of his freelance work.
“There can be so many different contracts in place in any one newsroom,” she says. “We all knew the old-timers had better contracts and that they seemed to be getting not only less generous, but fewer and far between. ‘You got a contract yet?’ is one of the most common questions among the new guys.”
As freelancers become more predominate in the workplace (20% and rising Europe-wide), so too will the problems surrounding their employment. There are obvious benefits and ones that appeal, according to a report by the Independent Federation of Journalists, to journalists in particular. They are drawn, it seems, to the ‘professional independence’ it can provide. The UK is also as good a place as any in Europe to be a freelance journalist, and in many instances, better than most.

Freelance heaven
In most European countries freelance journalists not only enjoy fewer protections than their counterparts, but often wages substantially below the national average for journalists. Sometimes, as is the case in Norway and Sweden, they are paid below the overall national average. The UK is an exception and has up to now maintained, according to IFJ, a level of remuneration suitable to economic risks the freelancer takes. The IFJ puts this, in part, down to the ‘image’ of the professional journalist in the UK.

Freelancing is, however, a breeding ground for dispute. This can be because contracts are often little more than gentlemen’s agreements reached over drinks at the press club. An informal straw poll of a dozen-or-so freelance journalists revealed that all content to operate almost entirely on this basis.

For HR managers, this can be of benefit in that freelancers are less likely fight their corner because chances are they’ll have little more than a nod and wink from the editor and even if they have, their collective bargaining power is nothing like the relative might enjoyed by their staff counterparts, although the unions will offer vigorous representation to their freelance members should they ask for it.

Many journalists become familiar with freelancing from early in their careers as a way to supplement the poor wages enjoyed by junior reporters. Hopes are that the contractual ban on freelancing imposed by the BBC will not trickle down.

This type of ban can, and does, have the incidental effect of further reducing the freelancers bargaining powers.

David is an editor at a large and well-known London-based media company who regularly takes on outside work.

“Journalists are badly paid and London is an expensive place to live,” he says. “I have to take on the work, but I know in the back of my mind that if anything went wrong and they refused to pay for one reason or another, I can’t complain because I risk my day job, and they know that.”

Following tradition
Many of the pitfalls, according to industry experts, could be avoided if negotiations went further than a handshake and drinks. Editors handing out promotions, demotions and freelance contracts here, there and everywhere was once commonplace in Fleet Street and the evidence suggests it continues, to an extent, still.

Commentators are mostly unanimous in saying that had the Mirror followed a simple procedure it would not have lost the money and face it did. There was, it seems, no subtle legal technicality or obscure piece of legislation, just a knee-jerk reaction probably made by the wrong person in the heat of a very tense moment.

Had they followed procedure as understood by any HR department in the country and executed swiftly and methodically, like the Telegraph, they would have avoided one of the greatest and most costly embarrassments in newspaper history.

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