Play’s producer maintains cast are not entitled to minimum wage and holiday pay
Employment law distinguishes between three types of people: those employed under a contract of employment, those self-employed people who are in business on their own account and undertake work for their clients or customers, and an intermediate class of worker who are self-employed but do not fall within the second category. In the recent case of MacAlinden v Lazarov the Employment Appeal Tribunal (EAT) had to consider in which category a group of stage actors belonged.
Facts
The claimants in this case were inexperienced actors of varying experience and training who applied for roles in a production of David Edgar’s play ‘Pentecost’, put on at St Leonard’s Church in Shoreditch, London, between March and April 2012. They had responded to an advertisement in Spotlight, an industry website specialising in matters relating to the casting of actors. Their pay, it was stated in the advert, would be a profit share of the producer’s profits - although it soon became apparent from audience numbers and the number of members in the cast that, if there was a profit, the actors’ share of it would be minimal.
The claimants, along with other members of the cast, were required to sign a form of contract called an ‘actor’s contract’ which set out the parameters of the relationship concerning working hours and days, place of work and remuneration (namely profit share). The actors claimed that they should have been paid the national minimum wage and holiday pay by the director and producer of the play, Gavin MacAlinden, who worked in theatre production under the name Charm Offensive.
Tribunal
The employment judge held that there was a contract between the actors and the producer and that the actors were required to perform their work personally. The judge also found there was a “sufficient degree of mutual obligations on the facts found for the claimants to be workers”, which meant that they were entitled to the national minimum wage and to holiday pay. Accordingly, the employment judge upheld their claim. The producer appealed.
EAT
On appeal, the EAT held that the employment tribunal had not approached the question of worker status correctly and had not given sufficient reasons for its decision. In the EAT’s opinion, it was important to look at the relationship and consider carefully whether the actors were in fact embarking on a profession or business undertaking by providing their services to a customer or client, namely MacAlinden. The EAT remitted the case to a fresh tribunal for reconsideration.
Comment
Unfortunately, the question of whether actors are in fact workers remains, for the moment, undetermined. However, it seems likely from the direction given by the EAT that a freshly constituted tribunal will, once it has fully considered the well-worn test for worker status, reach a different conclusion to the employment judge in the case’s first hearing.
Andrew Haywood is a partner in the employment team at Penningtons Manches
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