Paul Jennings and Charlie Miller of BWB's Employment department has been successful in the East London Employment Tribunal, as the judge found that five actors involved in a fringe theatre play produced by Paul's client were self-employed professionals, rather than workers. As a result, they were not entitled to be paid the minimum wage.

The decision will come as a relief to producers in the underfunded sphere of fringe theatre, where limited budgets often necessitate profit-share arrangments for all involved in the collaborative process.

The play, David Edgar’s Pentecost, was put on in St Leonard’s Church in Shoreditch, London, in 2012 and featured a cast of 26. Following the play’s run, five of the actors brought a claim in the Employment Tribunal against the director, Gavin McAlinden, after it became clear that the production, which they had knowingly entered into on a profit share basis, had failed to make any money.

The actors were initially successful at a hearing in 2013 but Mr McAlinden appealed on the grounds that the judge had failed properly to apply the correct legal test. The Employment Appeal Tribunal found in his favour and the case was remitted back to the tribunal for another hearing.

The judge found that the actors were not workers for the purposes of national minimum wage legislation and could therefore not claim that they were entitled to have been paid the wage. Instead, they were self-employed professionals.

Paul Jennings, who represented Mr McAlinden on a pro bono basis, said: “Mr McAlinden made it clear to all the actors upfront that it was unlikely that they would make much, if any, money. In the event, despite being a critical success and nominated for two awards, this proved to be the case.”

He added: “Clearly the national minimum wage, and the living wage, are extremely important and the exploitation of workers is unacceptable. But profit-sharing, in its true sense, does not involve exploitation. It is extremely common for artists to collaborate and agree to work on the basis that they will share any profits generated. Requiring a director to pay the minimum wage in circumstances where there is no independent funding and the participants have agreed in advance to a profit share arrangement runs the risk of stifling fringe theatre and other collaborative artistic projects.”

He continued: “Where this judgment is important more broadly is in the finding that the actors were self-employed professionals rather than workers. While the judge made clear that he had reached his decision on the facts of this case alone, it is difficult to see how, in the majority of equivalent cases, a tribunal could come to a different conclusion.”

Mr McAlinden stated: “I am very pleased with the judgment, which vindicates the position that I have held all along. Acting is a very tough industry and I believe actors should have the right to say ‘yes’ or ‘no’ to profit share productions. Most profit share producers are completely devoted to the artistic process, work very hard and invest – and often lose – their own money.”

He added: “I was and remain very proud of the production and the work that we all put into it collectively. Although I did not make any money from the show, it was a really worthwhile project.”

The judgment was covered by the Independent and BBC News.

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Paul Jennings


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Posted on 15/07/2015 in BWB News

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