RTÉ's legal risk over Tubridy could depend on whether he's an employee or contractor, says expert

Lawyer Julie Mullan said the use of contracts between the station and companies representing its stars, as was the case with Mr Tubridy, is 'a sticky area' because 'Revenue don’t like those contracts, and could turn around and say in reality it comprises an employee contract'. Picture Colin Keegan/ Collins 

The extent to which RTÉ has exposed itself legally by letting Ryan Tubridy go will hinge on whether or not he is deemed to have been an employee or a contractor, a legal expert has said.

RTE’s contract with Mr Tubridy, which covered the period 2020 to 2025 for both television and radio commitments, remains a matter of some dispute as to whether or not it remains live.

The broadcaster is now insisting it will make no severance payment to Mr Tubridy in the wake of the two having parted ways.

However, while the terms of employment of Mr Tubridy were agreed between his company Tuttle Productions and the station, that does not mean he could not still be perceived legally to have been a de facto employee.

Mr Tubridy stepped down from his role as presenter of the flagship Late Late Show in May but has remained on RTÉ’s payroll ever since in terms of his radio commitments, despite being off-air since the scandal broke in late June.

In cutting short negotiations with the presenter regarding a new radio and podcast contract, RTÉ’s director general Kevin Bakhurst had acknowledged there was “always that danger” a legal action could ensue, though he added  in his opinion such an eventuality would not be “a good thing for anybody”.

“I would struggle to believe that he was not an employee,” Julie Mullan, partner with Dublin law firm McGrath Mullan, said.

Contract wording

Ms Mullan, an employment law expert, said what happens now will “come down to the wording” of Mr Tubridy’s contract, but it is less likely that RTÉ would not be required to pay its former star a severance settlement.

“He resigned from the TV side of the contract, but I don’t see how they can say that he’s resigned from the radio side. I don’t see how they can’t pay severance,” she said.

She said the use of contracts between the station and companies representing its stars, as was the case with Mr Tubridy, is “a sticky area”, because “Revenue don’t like those contracts, and could turn around and say in reality it comprises an employee contract”.

In terms of what severance Mr Tubridy could be expected to receive, Ms Mullan said “six months at a minimum” would be the expected payout.

On Friday afternoon, however, RTE made clear “there will be no severance payment”.

“Now that RTÉ contract negotiations with Ryan Tubridy have concluded, as confirmed on Thursday by RTÉ director general Kevin Bakhurst, payments to Ryan Tubridy will conclude in due course," a spokesperson said.

One question that still arises is why Mr Bakhurst gave Mr Tubridy a chance to return to the airwaves in the first place.

While the dropping of Mr Tubridy may signal an end to a scandal that has dogged RTE for months and done the broadcaster immeasurable damage, the situation still has the scope to get legally very messy.

One question that still arises is why Mr Bakhurst gave Mr Tubridy a chance to return to the airwaves in the first place.

Ms Mullan does not believe that decision boiled down purely to Mr Bakhurst being willing to give anyone a fair hearing and a second chance.

“I think their lawyers contractually advised that they had to bring him back,” she said adding that she was “quite surprised” at the decision to sever ties.

Tubridy 'made a scapegoat'

“I haven’t quite got my head around that, and with the suggestion that he had been poorly served by his advisers. It feels like he has been made a scapegoat publicly,” she said.

“The key question is whether or not he was deemed an employee, but there’s no way they would be engaging in new contracts with him if they didn’t feel that they had to,” Ms Mullan added. 

“There are some very, very angry people in RTÉ over what has come to light,” she said, people who would not have been favourably disposed to a return for Mr Tubridy.

Now that he is gone, she said, RTÉ appears to have left itself “wide open” to a legal challenge.

I think they probably have left themselves exposed. He has always been quite adamant that he had done nothing wrong, and that has not changed.”

Ms Mullan said it was possible that RTÉ has “done the sums” and decided whatever the potential financial liability was nevertheless outweighed by the benefits of having Mr Tubridy off the books.

“If one were to advise what the risks are, the financial figures are always the biggest factor, and then the reputation of the institution,” she said.

Implications for other stars

Leaving that messy situation aside, what are its implications for the station’s other highly-paid stars, given the now-moot contract Mr Tubridy was due to have been offered was worth €170,000, a 15% cut from what his previous radio contract was worth, and given Mr Bakhurst has signalled all other contractors will be expected to take pay cuts as their own deals expire.

“I would say that they will be panicking,” Ms Mullan said. “They’ll be going off to look at their own contracts, to see what rights they have, to see what fees they’ve been charging.”

So where does the broadcaster go from here? In particular, how does it rehabilitate its reputation as an employer of worth, in the eyes of its own workers?

“They will need to sit down properly with the employees and the unions and properly engage. There are a lot of disillusioned staff, not least because despite all that had happened [with Tubridy], they were still going to take him back,” Ms Mullan said.

“They need to take a long-term view of this, and to look at the welfare of all staff, not just those on high salaries.”