A hearing was held in London Central Employment Tribunal, on 10 – 12 January 2022, to determine whether a claimant cohort of 16 actors, dancers and stage managers were limb (b) workers pursuant to s.230(3) Employment Rights Act 1996 (‘ERA’) and Reg 2(1) Working Time Regulations 1998 (‘WTR’) when they were engaged by the Respondent. The Tribunal heard from four Lead Claimants. Alex Shellum acted for the Claimants. The Respondents were represented by leading counsel.
In the judgment delivered on 4 April 2022, Employment Judge Norris made a declaration that the Claimants were limb (b) workers. In the absence of agreement, the case will now proceed to a remedy hearing to determine the Claimants’ claims for unpaid holiday pay.
The principal Respondent is the world’s largest pantomime production company. The Claimants were engaged at different points as actors, dancers and stage managers on various of the Respondents’ annual Christmas productions. As the Tribunal put matters, ‘none of the four Lead Claimants is what is normally called a “household name”’. In each case, they were engaged only between November – January in any given ‘panto season’. Each of the Claimants were engaged under written contractual terms which described them as self-employed contractors and made no provision for holiday pay.
There was no dispute that there was a contractual relationship between the parties and that the Claimants were under an obligation to provide personal service. The issue between the parties was whether the Claimants fell within the ‘client or customer’ exception in s.230(3)(b) ERA – namely, the Respondents contended that each of the Claimants carried on a profession or business undertaking for which the Respondents were their ‘client or customer’, thereby precluding the Claimants from being limb (b) workers.
In support of their contention, the Respondents inter alia pointed to the following factors:
The Tribunal rejected that argument. Having tracked the relevant authorities, including the Supreme Court’s judgment in Uber v Aslam and the purposive approach to statutory interpretation endorsed in that case, the Tribunal set out the reality of the relationship between the parties.
The Tribunal found that it was unrealistic of the Respondents to say that the Claimants could work elsewhere during the ‘panto season’ because of the physical and geographical constraints on the Claimants’ time – pantomimes would often be held in regional theatres, far from the Claimants’ place of residence or other work opportunities. Consequently, once the Claimants had committed to a season’s production, ‘they have no further autonomy or independence whether in relation to that production or otherwise form the date rehearsals start until the day the run ends’.
The Tribunal further found that ‘[the Claimants’] ability to negotiate their pay – try through their agents might [sic] – is in reality very strictly limited’. The contracts provided to the Claimants were entirely the creation of the Respondent and were applied indiscriminately to all performers. The Tribunal found that ‘there is, as the Claimants submit, a vast degree of inequality of bargaining power between them and the Respondents.’
In relation to the argument that the Claimants fell within the ‘customer or client’ exception on account of their self-marketing, the Tribunal held that ‘I consider it is a facet of the acting industry that performers are forced to market themselves through Spotlight, as members of Equity and/or using agents if they are to have any prospect of securing roles. They are not doing so to progress a business that they have established. They are dependent on the production companies for whom they work and cannot “look after themselves in relevant respects”’ quoting from Byrne Brothers (Formwork) v Baird & Others  ICR 667. The Tribunal further held that the Claimants’ self-marketing was akin to using any recruitment website or engaging an employment consultant or head-hunter.
Hence, the Tribunal was not satisfied that the Claimants were in business on their own account notwithstanding their status for taxation purposes. The Tribunal held further that, in any event, even if the Claimants were in business on their own account, they were recruited to work for the Respondent as an integral part of the production which the Respondent had chosen.
The Tribunal accepted the Claimants’ submission that they were thoroughly integrated into the Respondent’s operations for the period of their engagement. As put by the Tribunal, ‘they are not providing a performance, ready-made by them, to a venue as might be the case with a stand-up comedian or singer, for instance. They are not a “one-person show”. Each of them performs within the projects of others and is integrated into each project because the underlying aim of the project is precisely to convey that they are part of the whole.’
As to the length of the engagement, the Tribunal accepted the Claimants’ submission that the length of the engagement was a by-product of the length of the season and should not militate away from finding that there was overall integration. The Tribunal held that the length of the engagements ‘does not bring them within the circumstances of a “short-term assignment” identified by Underhill LJ in Secretary of State for Justice v Windle and Arada  ICR 721’.
Accordingly, the Tribunal in declaring that the Claimants were limb (b) workers concluded as follows:
‘It is hence entirely unrealistic to suggest that the Respondents, or any of them, are the “client or customer” of the Claimants. The Second Respondent is the largest pantomime production company in the world. The Claimants are each individual performers, seeking to make a living from their performance skills. The Respondent’s marketing efforts through publicity, as set out above, generates the audience for the productions in which the Claimants appear, but under the Contract, the Claimants have no independent right to the shows or even their own associated publicity, before or during the run or even for some time afterwards. They are in a very similar position to Dr Westwood in his claim against Hospital Medical Group [Hospital Medical Group v Westwood  ICR 415 CA]’.
Although only a first instance judgment, this ruling has significant implications for the use of the self-employed contractor model in the theatre industry, and opens the way for other potential claims by actors, dancers, stage managers and other creative workers engaged under similar arrangements.
It moreover has significant implications for the Respondents, which engage on their own account over 1,000 such individuals each pantomime season.
Alex Shellum acted for the successful Claimants, supported throughout by their trade union Equity. Alex was instructed by Emily Bradshaw and Patrick O’Donovan of Pattinson & Brewer
William Meade (Senior Clerk)