Three participants on the French version of Temptation Island have won compensation for unfair dismissal as well as the right to be treated as salaried workers. Glenn Jaques, partner in the Employment department at Wake Smith, discusses the implications for reality TV stars in UK shows including Big Brother and the Apprentice and questions whether the ruling is a step too far in the world of light entertainment.
The three "contestants realit" - Anthony Brocheton, Marie Adamiak and Arno Laiz - pocketed around €11,000 (£8,500) each after their three-year legal battle, including €8,176 each in overtime on the grounds that they had worked for 24 hours a day. They also won €817 for being denied a holiday, €500 for unfair dismissal and €1,500 for the wrongful termination of their contracts.
Interestingly the Supreme Court ruling noted: "Tempting a person of the opposite sex requires concentration and attention."
The news means that contestants/housemates in France are effectively deemed quasi-employees of the television company during the time they are under contract.
As such, they may acquire "worker rights" which include the right not to be discriminated against and, in some circumstances, should they be considered employees, rights to holiday pay, not to be unfairly dismissed and other rights under the Working Time Regulations.
But while the French production company Glem - now called TF1 production - behind Temptation Island for the private TF1 channel, counts the cost, could this, we wonder, happen over here?
Most people will recall the Shilpa Shetty race row which became the focus of media attention in the 2007 Celebrity Big Brother show. "Workers" have legal protection from any form of discrimination which, if adopted by the UK courts will mean that those discriminated against in future, for reason of race, sex, age, religion/belief or sexual orientation may have a cause of action against both the production company and those responsible for the victimisation or harassment.
In the case of the Apprentice, it is sold as a 3 month job interview (or however long), but given the French ruling, the candidate's employment by the TV company may have started immediately.
Although this may seem a frivolous waste of good court time and the bestowing of employment rights and protections to fame hungry wannabes, there are some serious legal questions arising from the decision of the French courts.
Whether somebody is an employee can be determined by considering the basic principles of employment law: is there is payment made to the contestants in return for providing a service (entertainment); is there a mutuality of obligation - for the contestants to be scrutinised by cameras every second of the day in return for some financial compensation, and; control of the individual by the employer (when tasks will be performed and completed by, for example). There is a good and valid argument that reality shows meet all of these criteria in part if not in full.
But what does all this mean for the future of reality TV? The truth of the situation is that most contestants will be happy to give up any employment rights they may acquire for a chance of winning or fame. No doubt there are some tightly drafted contracts limiting what contestants can do and demanding what they must.
Most employers know that there is a difference between what makes a good employer and what makes good TV. The recent interviews round of the Apprentice provided a snapshot of how employers must not conduct selection and assessment interviews. For those in doubt, it is not wise for employees to sell themselves as "bringing ignorance to the table" nor appropriate for employees to be discounted on grounds of not showing emotion (would that have been a criticism of a man?).
And now we have Big Brother Series 10 upon us, infiltrating our lives on TV, radio, online and on the front covers. A twist this year was to introduce a probationary period - again, not unusual in a new job. An opportunity to make an assessment of a new employee within the first month or three of employment gives an employer a good opportunity to spot any flaws at an early stage. But for the housemates, the five day assessment was based on whether you are prepared to change your name by deed poll (to Halfwit and Dogface for those unfamiliar with the show) rather than genuine occupational qualifications and requirements.
With this in mind, I think it is time that reality TV shows began to set certain standards which will reinforce standards of fairness, equality and discipline which are expected not only in business, but in daily life too. Unfortunately reality TV is set to be around for much longer so production companies will just have to be a little more careful in who they select and what they have them sign in future.
For further information please contact Mark Serby at [email protected] or on 01142666660.
