It’s been a long time coming. Employment status reform has been talked about, trailed, parked and un-parked for the best part of a decade. On Tuesday the Government finally published its consultation, Make Work Pay: employment status reform and protections for the self-employed. Even the Minister’s foreword admits that draft papers on this have been circulating Whitehall for decades. The Government now says it intends to “grasp the nettle”.
For those working in film and TV in particular, where freelance crew are the lifeblood of every production, this is one to read carefully. We’ve spent the last couple of days working through the 47-page paper. Quick caveat: it’s very much a consultation (the header on every page reminds us it is “not government policy”), so these are our preliminary thoughts. But there’s plenty here to give a flavour of where things may be heading.
First things first: the three tiers survive
The headline for many will be what isn’t in the consultation. There’s no proposal to collapse the UK’s three-tier system of employee, worker and self-employed into a single status of “worker”. That had been flagged in the original Plan to Make Work Pay. The Government now describes it as a “longer-term goal”, while also recognising the flexibility that worker status gives both workers and businesses.
We suspect a fair few HR and production teams will breathe a sigh of relief at that. From 1 January 2027, the qualifying period for ordinary unfair dismissal drops from two years to six months. Those rights still only apply to employees. A single status that blurred the line between employees and workers would have raised some very real questions about unfair dismissal exposure for long-running freelance engagements. For now at least, that line holds. We’d just gently note that “longer-term goal” is not the same as “off the table”…
So what is being proposed? There are three main areas, and some of them could have a real impact on the sectors we regularly advise.
1. Personal service takes a back seat (and control takes centre stage)
At the moment, someone can only be a “limb (b) worker” if they agree to do the work personally. That’s why broad substitution clauses (“you can send someone else in your place”) have long been used to push people into self-employment, even where the business controls almost everything about how they work.
The Government’s preferred fix is to change step 2 of the worker test. A tribunal would ask whether the individual personally provides services and/or is under a significant level of direction or control. Personal service alone would no longer be fatal to worker status, although it would still be looked at again at the final stage. Alternative options are also on the table:
- lowering the bar for what counts as personal service; or
- legislating that a right of substitution can’t be the sole or overriding factor.
The Government also floats renaming “limb (b) worker” to something more intuitive. That’s hard to argue with, as anyone who has tried to explain the phrase to a producer will know.
Our thoughts? For most film and TV crew, this probably changes less than the headlines might suggest. You hire a particular DoP, gaffer or editor because you want them, so meaningful substitution rights are rare. In practice, crew working under a production’s direction, to the call sheet and the schedule, often already look like workers for employment rights purposes. Most productions already treat them that way for holiday pay.
Where it could bite harder:
- Games: contractor agreements with broad substitution clauses are more common, for outsourced QA, art and freelance development work. These clauses have often been relied on as a key indicator of genuine self-employment. If control becomes the key question, studios that closely direct contractors’ work, hours and tools may need to revisit their position.
- Sport: casual matchday staff, such as stewards, hospitality and catering teams, are often engaged through apps or banks that let people swap shifts freely. That kind of flexibility may carry far less weight under the new approach if the club or venue tightly controls the work on the day.
One further point to watch. The Government asks whether the ability to set or negotiate pay should be a key factor in separating workers from the self-employed. That’s interesting for film and TV, where crew rates are often set by reference to collectively agreed rate cards rather than negotiated individually. How a tribunal would treat that is far from clear.
2. A presumption of worker status (and higher stakes for getting it wrong)
This is the proposal we think businesses should focus on most. The Government wants to reverse the burden of proof. In any claim relating to a worker right, such as holiday pay or the national minimum wage, the individual would be presumed to be a worker unless the engager proves otherwise. The model is the presumption that already applies under the National Minimum Wage Act. It would only apply to the status question, not to whether the right was actually breached, and it wouldn’t extend to employee status.
Alongside that, the Government proposes:
- Tougher penalties for repeat misclassification. Repeated failures to recognise status would become an aggravating factor, triggering penalties of £100 to £20,000 per claim. That applies where a tribunal has already found colleagues on broadly similar facts to be workers. The current power has been used just 50 times in five years, so the Government clearly wants it to have more teeth.
- A bigger role for the Fair Work Agency. The Agency could use its new civil proceedings powers to bring status test cases on behalf of individuals where bogus self-employment is suspected.
- An online status checker. This would be a non-binding tool, similar to HMRC’s CEST tool for tax.
For productions, the practical upshot is that documentation and day-to-day reality will need to line up more closely than ever. If you engage someone as self-employed, you’ll need to be able to evidence why. The “broadly similar facts” point is also worth watching for businesses that run each production or event through a separate company. The consultation doesn’t say how far a ruling against one entity could be taken into account against a related one.
It’s also worth remembering that the consultation only covers status for employment rights, not tax. Film and TV already lives with the two systems pulling in slightly different directions. Changes on the rights side won’t automatically affect the tax position.
3. New protections for the genuinely self-employed
Finally, the Government is consulting on new rights for people who are genuinely self-employed. This is where film and TV gets a specific mention, more than once.
A written statement. Self-employed people providing services to a business could get a right to a written statement setting out:
- the parties;
- the scope of the work;
- the expected duration;
- the payment terms; and
- the termination terms.
The consultation’s own example is a make-up artist engaged by a production company on a TV production. A written contract containing that information would be enough, so most productions issuing proper crew deal memos should be largely there already. The real question is the qualifying threshold. The Government suggests options of one week, four weeks or three months, or a minimum contract value. A one-week threshold would capture a lot of short engagements, such as dailies, freelance photographers at sporting events and session voice actors for games.
Health and safety protections. The protection against detriment for removing yourself (or others) from serious and imminent danger could be extended to the self-employed. The consultation expressly mentions creative and cultural sectors, where freelancers may fear losing future work if they raise safety concerns. Think stunts, live events or a difficult location shoot.
Health and safety reps. At present, the only non-employees who can act as health and safety representatives under the relevant 1977 Regulations are members of Equity or the Musicians’ Union. The proposal is to open this up to members of any union. In film and TV, that would naturally include Bectu members.
Blacklisting. Protections against blacklisting for union membership could be extended to the self-employed. In industries where so much hiring happens through word of mouth and reputation, and with union activity rising in games and in film and TV, this deserves careful thought.
So where does that leave us?
Not facing a revolution, but certainly not business as usual either. The three-tier system survives, and the single worker status remains a longer-term ambition rather than an imminent change. But reversing the burden of proof, the shift towards control and the new protections for freelancers could all change how disputes play out in practice. That’s especially true for film and TV, games and sport, where flexible and project-based engagements are the norm.
For now, it would be sensible to:
- review contractor and freelancer templates, particularly any reliance on substitution clauses;
- check whether day-to-day practice actually matches what the paperwork says; and
- think about how you would evidence self-employed status if the burden shifted to you.
The consultation closes on 8 January 2027, and these are exactly the sectors whose voices should be heard. We’d be very happy to help clients consider and shape their responses.
We’ll continue to monitor developments and keep you updated. In the meantime, our specialists are here to help if you have any questions.