As models are flown in from across the globe for London Fashion Week, we take the opportunity to remind businesses of their responsibilities towards models under UK employment law.
Last summer, we blogged on the movement gathering momentum both in the UK and further afield to ensure that models’ working conditions provide adequate protection.
The British Fashion Council does not directly employ models for London Fashion Week; the vast majority of models are employed on an agency basis. Below, we outline how to determine who is an “agency worker” and the rights afforded to such workers under UK employment law. We raise issues that brands should be aware of, particularly if working closely with modelling agencies at fashion events in the UK.
Who is an agency worker?
An agency worker is someone in an employment relationship with a temporary work agency, who is supplied by this agency to work temporarily for and under direction and supervision of a “hirer” (a client of the agency). In the context of events such as London Fashion Week, many models signed up with modelling agencies work for the British Fashion Council and other fashion week businesses (hirers), for the duration of the events. Under UK employment law, these models are likely to be classified as “agency workers”.
What rights are afforded to agency workers?
Determining the rights that agency workers are entitled to under UK employment law can be tricky. This is because rights will depend on a model’s employment status (e.g. are they an “employee”, a “worker” or “self-employed”?) and these distinctions can be difficult to make. That said, agency workers are entitled to certain minimum rights and businesses should be on the lookout for the following:
- “Day 1” Rights: From the first day of an agency worker’s assignment, a hirer must ensure that the agency worker can access its collective facilities and amenities (e.g. canteen facilities or work-place child-care) which are accessible for comparable employees or workers directly employed by the hirer. An agency worker must also be able to access information about the hirer’s job vacancies.
- “Week 12” Rights: If an agency worker is engaged by the hirer for a 12 week period, they will become entitled to basic working and employment conditions regarding pay, working time, rest breaks and annual leave, equal to those of the hirer’s direct recruits. While it is unlikely that this 12 week qualifying period will be met in the finite, short-term context of the London Fashion Week, this might be relevant for businesses who work with agencies more regularly. You can find the Department for Business Innovation & Skills’ guidance here.
- Protection from Discrimination: Agency workers may be protected against discrimination by both their agency and the hirer on the basis of a “protected characteristic” (age, sex, race, disability, sexual orientation, religious or philosophical belief, marriage and civil partnership, pregnancy and maternity and gender reassignment). Discrimination can be direct (being treated less favourably because of a protected characteristic) or indirect (where an act, decision or policy has the effect of disadvantaging a group of people with a particular protected characteristic). Businesses engaging agency workers should review their policies and practices to ensure they are not discriminatory.
- National Minimum Wage (“NMW”): Models who are agency workers will be entitled to receive the UK national minimum wage (see our earlier blogs on the NMW), currently £6.31 per hour for those over 21, £5.03 for 18-20 year olds and £3.72 for those under 18. If an agency worker is classed as a “worker” of either the temporary agency or the hirer, that party will be responsible for ensuring the model is paid NMW. If no specific arrangements are in place, the party which actually pays the agency worker will be obliged to make sure the NMW is paid.
- Equal Pay: Where a female agency worker performs equal work to a male agency worker at the same establishment (e.g. the Fashion Week premises), it is likely they will have a right to equal pay by their agency.
- Working Time Restrictions: Agency workers are specifically protected under the UK Working Time Regulations and restrictions on working time will apply unless a model has validly “opted out” of such protections. An agency worker’s average working time must not exceed 48 hours per week, they are entitled to a daily rest period of 11 hours and a rest break of 20 minutes when a day’s working time is more than 6 hours, and there are restrictions on what night time hours an agency worker can be made to work. More stringent restrictions apply to “young workers” (16 and 17 year olds) who may not work more than 8 hours a day or 40 hours a week and cannot legally opt out of these legal protections. As with the NMW, either the model’s temporary agency or the hirer will be responsible for ensuring compliance with these restrictions.
If a claim is successfully brought before a UK Employment Tribunal against a business in breach of these protections for agency workers, it may be ordered to pay compensation. It is essential to ensure that conditions and practice comply with the UK regime for events such as the Fashion Week; all eyes are on the subjects of these protections.