Bogus self-employment is one drama RTÉ can't pull the plug on
In 2021, the Department of Social Protection began its review of the historic employment status of 695 RTÉ workers. Photo: RTÉ.ie
Late last year, an employee of RTÉ received correspondence from Arthur Cox — one of the five biggest law firms in Ireland.
Speaking on behalf of their client, the law firm referred to a recent decision concerning the employee made by Scope, the employment status section of the Department of Social Protection.
That decision had concluded that, for a period of almost a decade, the woman in question was a de facto employee of the station, despite her having worked as a self-employed contractor for all of that time.
The employee, who officially became a full-time worker with the station in the middle of the last decade and who still works for RTÉ, had wondered what the decision regarding her employment status meant for her.
If she had been an employee for 10 years, doing the same work as others in accordance with RTÉ’s roster, what kind of retrospective holiday benefits and pension entitlements that she had missed would now be forthcoming?
In its letter, the law firm made clear that, as far as RTÉ was concerned, any notion that the Scope decision could give rise to claims for back payments of entitlements would be “entirely misconceived”.
The letter went further.
“We have been instructed to accept service and vigorously defend any proceedings and rely on the contents of this letter for the purpose of affixing your client with the costs of such defence,” it read.
What this means is: "If you push this any further, we will fight you all the way and will hold you liable for all the enormous costs to be incurred in court."
That’s a frightening letter to receive by any measure, and is indicative of an imbalance of power between an institution with the resources to employ a powerful law firm versus an average employee on an average wage.
Asked about that particular strategy by Fine Gael’s Brendan Griffin at the Oireachtas Media Committee last month, director general of RTÉ Kevin Bakhurst said he “couldn’t possibly comment”.
RTÉ has been embroiled in controversy since the Ryan Tubridy payments scandal first broke last summer. However, the thorny issue of bogus self employment is one issue that has bedeviled the broadcaster long before then — an issue it has been trying to get to grips with, and not especially effectively, for the past six years.
Young journalists starting out are generally so grateful to be working that they will be happy to work freelance for a short time, even if they’re doing the same work and hours as established employees.
RTÉ is different in two respects though: One, the broadcaster is a semi-state entity and is partly state-funded — meaning that in denying its workers benefits it did so in the name of the taxpayer.
Secondly, it operated those freelance contracts for far longer periods than most other media employers would have. For years in fact.
In 2018, the broadcaster — on foot of sustained media pressure — commissioned a review by employment consultants Eversheds of the status of 433 of its contractors.
Some 157 of them were found to have “attributes akin to employment”.
Of those, 82 were offered full-time contracts, and 79 of them accepted what was offered.
Some relatively piecemeal and time-limited retrospective payments were offered, with RTÉ causing uproar among staff by insisting upon non-disclosure agreements (NDAs) for those who accepted.
Unfortunately for RTÉ, the matter didn’t end there.
The problem is that there were plenty of other people within the organisation who had worked freelance involuntarily for years, and who were not included in Eversheds.
In 2021, the Department of Social Protection began its review of the historic employment status of 695 RTÉ workers. Roughly 170 of those have been completed to date. Most have been told they should have been treated as full-time workers for social insurance purposes.
RTÉ claims that its only liability stemming from those reviews is in terms of historic PRSI contributions, which the broadcaster never made. It estimates that the final liability will be roughly €15m and, intriguingly, that there is no corresponding tax liability — making the organisation somewhat unique.
The has recently spoken to multiple people who worked for a minimum of six years apiece as independent contractors across divisions with RTÉ.
All received decisions telling them they should have been employees. None of them were covered by Eversheds. None have, to date, received any offer of recompense for their years of service as contractors.
“RTÉ never got in contact with me about Scope, they never communicated with me unless I communicated directly with them,” she said.
She reckons that when she was deemed self-employed, roughly 70% of her department was in the same boat.
She describes colleagues who went through Eversheds. “One girl had two kids while working freelance and was offered €5,000 for her years of self-employment,” she says.
Another worker in a different section says the work he did didn’t change when he was finally given a full-time contract after six years.
“The tendency was to give the freelancers the more difficult work if anything,” he recalls.
At one stage, as a freelancer, he asked for a month off roster “to clear his head” and then received no work for six months.
“I was punished for standing up for myself, for making a reasonable request,” he says.
“I remember working on a news piece on zero-hour contracts and thinking to myself ‘that’s me’.”
He’s hoping “for a deal similar to Eversheds”, and wants retrospection going back to the beginning of his time with RTÉ.
“I’m really angry about what’s happened in the last year, really pissed off,” he says of RTÉ’s year of scandal. In particular, he cites assertions by the broadcaster’s HR director Eimear Cusack that RTÉ has never bogusly labelled anyone as self-employed.
“That’s a denial of reality,” he says.
“Everyone knew it was going on,” a third worker says. “I was doing more work than the actual staff. For eight years I had to work on Christmas. I got no increments. I’m only able to apply for a mortgage now and I’ve been there for more than 10 years.
"The Dee Forbes years in particular were ridiculous. They never talked to us, they’d just do town halls going on about how great they were,” he says.
“You have to laugh really because otherwise you’d lose the plot, it’s that well-known in there.”
RTÉ had yet to reply to a request for comment on these matters at the time of publication.
It has been speculated that one of the reasons RTÉ has been so aggressive in denying historic workers’ rights is that it simply couldn’t afford the potential liability.
That is scant consolation for those affected though. As one comments: “Kevin Bakhurst said there was a moral case for Ryan Tubridy to pay back the money he owed from the Renault gigs. So why is there no moral imperative to pay loyal workers back for the benefits they were denied?”
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