Frances Bissell, the celebrated cookery columnist who was recently dismissed by The Times after a long and distinguished career with the newspaper, lost her claim for unfair dismissal in the Stratford Employment Tribunal last month.

In spite of her close association with the newspaper, Ms Bissell's claim was dismissed on the grounds that she was not an employee of The Times, but was self-employed.

What is interesting about this case is that it highlights the fact that the right not to be unfairly dismissed is one of the few areas of employment protection still confined to the classic definition of employee.The Employment Rights Act 1996 (ERA), at section 230(1), confers the right not to be unfairly dismissed on an employee who is defined as 'an individual who has entered into or works under .

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a contract of employment'.

In Spring v Datastream Publishing Ltd EAT/1287/97, Judge Hull QC, in determining whether Ms Spring was a freelance or an employee of Datastream Publishing, noted that an employee could usually expect an indemnity from the employer for expenses necessarily incurred in connection with employment -- Ms Spring did not obtain reimbursement for the cost of her computer and accessories used in her work as an editor.

The judge also noted that Ms Spring was free to work for others besides Datastream.

It is not clear to what extent t hese factors were considered in Ms Bissell's case; nonetheless a long line of tax and employment cases in the newspaper and publishing field have rarely granted freelance journalists employee status for the purposes of the Pay As You Earn (PAYE) Regulations, redundancy payments and protection against unfair dismissal.As the scope of employment protection broadens, 'workers' are increasingly taking over the umbrella of protection from 'employees'.

The definition of worker has been fairly consistent in recent employment legislation but it is a fairly loose concept and has yet to be tested.Had Ms Bissell been subjected to a detriment for making a protected disclosure under the Public Interest Disclosure Act 1998 (PIDA), or wished, for example, to complain under the Working Time Regulations 1998 about working hours, lack of rest periods or paid annual leave, she would merely have needed to be a worker to make a claim.

For the PIDA, Ms Bissell would have to comply with the definition of worker provided by section 230(3) of ERA as meaning 'an individual who has entered into or works under (a) a contract of employment; or (b) a contract (whether express or implied), whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual'.

For the Working Time Regulations the definition of worker is similar.

Had Ms Bissell brought a claim under the National Minimum Wage Act 1998 (NMWA) -- for example, a claim for unfair dismissal in connection with the exercise of rights under the NMWA -- she would not have needed to prove employment status, but would simply need to be a worker (again using a similar definition as in section 230(3) of ERA).As a freelance journalist, Ms Bissell would presumably also qualify as a 'home worker' for the purposes of the NMWA.

Home worker in the NMWA is defined as meaning 'an individual who contracts with a person, for the purposes of that person's business, for the execution of work to be done in a place not under the control or management of that person,' and is further defined in similar terms to section 230(3) of ERA, with the proviso that for the word 'personally' there are to be substituted the words 'whether personally or otherwise'.

If Ms Bissell had wanted to exercise her right to be accompanied by a companion at a disciplinary or grievance hearing, in accordance with section 10 of the Employment Relations Act 1999, she would again merely needed to have had 'worker' status (according to the definition provided by section 230(3) of ERA), or been a 'home worker'.

Curiously, for the purposes of the right to be accompanied, home worker is defined in terms of a type of agency worker, which is unlikely to cover Ms Bissell's circumstances.As a 'worker', a freelancer could also bring an unlawful deduction from wages claim -- for example, a claim for non-payment of a bonus, provided again that he or she satisfies the test set out in section 230(3) of ERA.A freelance journalist could quite easily establish that he or she was in 'employment' for the purposes of a discrimination claim on grounds of sex, race or disability, or an equal pay claim, since the Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995 and Equal Pay Act 1970 all use a loose definition of employment in terms of 'employment under a contract of service or .

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a contract personally to [execute] [do] any work [o r labour .

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.]'.At European level, the concept of worker has been warmly embraced.

The most recent discrimination legislation to emanate from a European directive, the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, gives protection to workers (using the definition as in section 230(3) of ERA) who are discriminated against on the grounds of their part time status, thus abandoning the employment-related qualification used in previous discrimination legislation.

The Fixed Term Work Directive that must be implemented in the UK by 10 July 2001 refers to workers, rather than employees, throughout.

The Fixed Term Work Directive, in its preamble, states that it 'represents a further contribution towards achieving a better balance between flexibility in working time and security for workers'.

The European Employment and Social Policy document 'A Policy for People' records that 'The European Union advocates .

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the introduction of alternative working time models or new types of contract'.

The European Union has clearly demonstrated its intention to promote and protect alternative/atypical forms of working to be performed by 'workers' rather than employees.Quite separately to European developments, the government has indicated a commitment to extend statutory employment rights to individuals who do not currently enjoy them.

The government proposes to use its power to ensure that all workers other than the genuinely self employed enjoy employment protection, in particular, for example, agency workers and temporary workers but also 'freelancers'.

Under section 23(2) of the Employment Relations Act 1999 the secretary of state has specifically reserved the right to 'by order make provision which has the effect of conferring any [such] right on individuals who are of a specified description'.The rights that are envisaged are rights under ERA, including unfair dismissal.

The likelihood is that the current definition of worker used in ERA will be adopted for the purposes of the qualification for unfair dismissal.

As soon as the government introduces the regulations that it has reserved the right to do under section 23 of the Employment Relations Act, freelance journalists like Ms Bissell are likely to acquire unfair dismissal rights and will be in the same position as employed staff for virtually all employment protection purposes.