Written evidence from Freelancers Make Theatre Work and the University of Essex (ERB0012)

UK Parliament Business and Trade Committee – Employment Rights Bill consultation

Evidence-based response from Freelancers Make Theatre Work and Professors Melissa Tyler and Philip Hancock, the Future of Creative Work group, Essex Business School, University of Essex.

Who we are

Freelancers Make Theatre Work (FMTW) is a UK charity supporting the 200,000+ self-employed and freelance workers who make up 70% of the UK theatre workforce, covering all areas of theatre, opera, dance and live performance. FMTW aims to encourage more transparent and inclusive conversations within the performing arts industry by listening to and articulating freelancers’ needs to theatre managers, production companies, industry bodies and government. Professors Hancock and Tyler are co-directors of the Centre for Work, Organization and Society, and of the Future of Creative Work research group at the University of Essex. FMTW and Professors Hancock and Tyler have collaborated since 2020, collecting, analysing and disseminating research on freelancers working across the UK’s creative and cultural sector.

Contribution to the consultation

This evidence responds to the following consultation questions:

• Does the Employment Rights Bill adequately safeguard the workers it seeks to protect?
• Are there weaknesses or loopholes in the Bill that could be exploited or have unintended consequences?

The entertainment industry is estimated to be worth more than £80 billion to the UK economy and is cited as a world-leading destination for foreign investment[1]. Freelancers are the backbone of this industry. Whereas freelancers make up 16% of the nation’s workforce, in the performing arts, this figure rises to an average of 71% across the sector and is much higher (80%+) in some sub-sectors, e.g., music[2]. At the same time, the chronic precarity and structural inequalities that cultural and creative freelancers experience are widely documented (see, for instance, Arts Council England’s ‘Cultural Freelancers Study’, 2024)[3].

Our research, The Big Freelancer Survey, conducted annually by Freelancers Make Theatre Work and the University of Essex on freelance and self-employed workers in the creative and cultural sector between 2020 and 2024, has highlighted the urgent need to address the disparity between PAYE employees and freelancers’ access to fair pay and decent working terms and conditions. Doing so would be a relatively small but significant step towards addressing the chronic and unsustainable financial precarity that persists across the sector and towards securing the future of a global entertainment industry that is at the heart of UK society and the economy.

This Bill represents a unique, timely and urgently needed opportunity to respond to widespread evidence of chronically exploitative and unsustainable working terms and conditions for freelance creative workers. Implementing the Bill without it referring to and making provisions for safeguarding the pay, terms, and working conditions of freelancers as well as PAYE employees would represent a significant missed opportunity. Doing so would accentuate rather than alleviate chronic precarity in the UK’s creative and cultural sector, worsening rather than addressing disparities between PAYE employees and freelancers.

Evidence

The Big Freelancer Survey has, to date, been completed by 11,000+ freelancers working across the full breadth of the UK’s creative and cultural sector – in film and television, the music industry, theatre, dance, and many other art forms.

Evidence from each of the annual surveys conducted between 2020 and 2024 highlights how freelancers’ lack of access to employment protection, HR infrastructures, and recourse when they experience negative behaviours such as discrimination, bullying and harassment exacerbates existing problems resulting from their relatively low pay, job insecurity, involuntary turnover (and hence, skills shortages in many sub-sectors), and persistent social inequalities. The 2024 survey reported that the average pay gap between freelancers in the creative and cultural sector and average national earnings is 17.5%.[4]

The Big Freelancer Survey 2020, ‘Routes to Recovery,’ reported that ‘like all freelancers, the artists, craftspeople, and technicians who make up the performing arts workforce have no statutory access to sick pay, holiday pay, or maternity and paternity pay. The organisations for which they work make no pension contributions on their behalf. As a consequence, the business model which most freelancers operate is extremely insecure. One freelance stage manager who took part in the study, which also involved one-to-one interviews with freelancers, said, ‘I simply can’t afford to get ill. I’m constantly balancing the need for recovery time between projects against the need to keep earning all year round’. The 2020 report concluded, ‘the self-employed are, and always have been, subject to fewer “protections” than employees. De-risking the profession is not in the sector’s gift. However, there is important work to be done both in lobbying government for legislation and guidance change and in finding new mitigations for that risk.’

Evidence from the Big Freelancer Survey 2022 and 2023 further points to the urgent need for changes to employment protections and for freelancers to have access to equitable working terms and conditions relative to PAYE employees.

The Big Freelancer Survey 2022, ‘Open to All, But Not Open All Hours: Hopes and Fears for the Future of the UK’s Entertainment Industries’, reiterated the call to review freelancers’ lack of access to a safe and secure work environment, highlighting how this worsens structural inequalities which persist across the sector, concluding that ‘freelancers should have access to … sick pay, and paid maternity/parenting leave on a par with PAYE employees. For some, a better regulatory and support structure was identified as a possible route to tackling some of the worst excesses of persistent inequalities’, and survey participants identified legislative changes to their working terms and conditions as key to this, e.g., as one freelance actor put it, ‘poor and working-class artists are unable to sustain knocks and uncertainty and need practical, financial support such as access to sick pay when needed to ensure the industry doesn’t lose their talent’. Many participants said that without the minimum benefits accessible to PAYE employees, work in the industry is simply unsustainable, with the report concluding that ‘a better regulatory and support structure is essential to tackling some of the worst excesses of persistent inequalities’.

The Big Freelancer Survey 2023, ‘Underpaid, Undervalued and Under Pressure’, reported the widespread perception that freelancers feel ‘cheated’ out of access to fairer working terms and conditions. Many report leaving the sector because the chronic insecurity and uncertainty are unsustainable, especially in the wake of the Covid-19 pandemic, Brexit, and the increased cost of living in the UK. Less than a third of those surveyed reported being able to make any provision for retirement, and many live and work in fear of becoming ill and of being unable to earn what is already often an hourly rate equivalent to well below minimum wage, and national earnings. The median income of freelancers who took part in this most recent survey was £22,500, which compares to a UK median income of £33,402 (ONS), and gender pay gaps of up to a third were noted across sub-sectors. A substantial proportion - 47% of participants - reported that they had no savings at all to fall back on if they became ill and unable to work, and 80% had been unable to add to their savings over the previous 12 months.

The 2024 survey reported on a workforce at ‘breaking point’[5] due to unsustainably low pay and long hours, compounded by a substantial decline in arts funding. The evidence it reported contrasted a working community who are deeply committed to their work and sector with an industry that is widely described as ‘abusive’ in the structures it upholds and practices it perpetuates. The 2024 data reveals that in the financial year 2022-23, over a third of freelancers reported average hourly earnings below the National Living Wage for that period. These wages would be illegal in the context of a PAYE job. Furthermore, almost a fifth of respondents reported working an average of 50 or more hours per week over the past year, which is over the legal limit defined in the Working Time Directive. The situation is particularly severe for respondents who identify as having one or more disabilities or other medical conditions, with freelancers in this group earning disproportionately lower pay than others.

This evidence points to the urgent need to review the working terms and conditions of freelance workers in the creative and cultural sector and their relative lack of employment protection compared to PAYE employees working in the same or similar circumstances.

Response to consultation questions

This Bill provides an unprecedented and urgently needed opportunity to make legislative changes that would enable the UK to invest in the future of its world-renowned creative and cultural sector. This could be achieved by making legislative provision for employers to be required to commit to working terms and conditions for freelancers that are on a par with PAYE employees while contracted to them. The evidence provided by the FMTW/University of Essex Big Freelancer Survey over four successive years to date (2020-2024) indicates that this small but significant change would be an important step towards securing a fairer future for freelance workers and the sector of which they are at the heart.

In response to the question, ‘Does the Employment Rights Bill adequately safeguard the workers it seeks to protect?’, our evidence indicates that it does not, in its current draft, provide adequate and urgently needed protection for freelance workers.

In response to the question, ‘Are there weaknesses or loopholes in the Bill that could be exploited or have unintended consequences?’, our evidence indicates that, yes, the exclusion of freelancers from necessary protections constitutes a significant loophole and weakness in the Bill that could have unintended and significant consequences for the UK’s creative and cultural sector and the 70% of freelancers who are the backbone of its workforce.

We would be happy to contribute to this consultation further, and would welcome the opportunity to offer more detailed insight into how the Bill could substantially help the UK work towards a fairer, more accessible, and economically and environmentally sustainable future for freelance workers in the cultural and creative sector.