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The Pantomime Theatre Industry and Worker Status

View profile for Ayesha Casely-Hayford
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Case Summary: Slights & Others v Crossroads Pantomimes Ltd & Others

An Employment Tribunal has made significant findings for the pantomime theatre industry in the case of Slights & Others v Crossroads Ltd & Others. The case was heard in the London Central Employment Tribunal on 10th to 12th January 2022 by Employment Judge Norris. Read the case itself here.

The individuals who brought the claim (the Claimants) have held various roles in pantomime productions including being performers, stage managers, and part of the technical support for the production. The case centred on the Claimants’ capacity as performers. Via Equity (the British Actors’ Union), the Claimants brought a group claim against their employer, Crossroads Pantomimes (formerly QDos Pantomimes). They argued that they were workers and therefore entitled to certain protections under UK law. In particular they were seeking holiday pay.

Crossroads Pantomimes is the largest pantomime production company in the world. It was arguing that the Claimants’ were self-employed and not workers, which is also what was written in their contracts.

The Employment Tribunal has ruled that the pantomime performers were workers. This means that the Claimants (and perhaps others in similar situations) are entitled to holiday pay from their employer.

A case unique to the UK, the English pantomime is a genre of traditional family theatre typically performed during the Christmas and New Year season. This tribunal decision follows on from the findings in the case of Uber BV v Aslam and gives a defining perspective on a cultural and industry specific employment relationship. We are reminded that an employment contract is not like other contracts but categorised by subordination and dependency. In determining employment status the contract itself is not the starting point. To ensure the implementation of parliament’s legislative intentions we have to look at the working relationship as a whole to see whether, due to any hierarchical elements, there is a need for individuals to receive legal protection.

The Legal Issue: limb “b” workers

The legal issue considered in this case was: are the Claimants ‘limb “b” workers’?

 ‘Limb “b” worker’ refers to section 230(3) subsection (b) (or limb “b”) of the Employment Rights Act 1996 (the Act), which says:

’In this Act ‘worker…means an individual who has entered into or works under (or, where the employment has ceased worked under) -

(a)    a contract of employment, or

(b)   any other contract, whether express or implied and (if it is express) whether oral or in writing, 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.’

The main focus was on the client/customer categorisation. If Crossroads was a client or a customer receiving services from the Claimants, the Claimants would be self-employed and not workers. The relationship would be on a more equal footing and not one of subordination and dependency. Judge Norris decided that as far as the Claimants are concerned Crossroads was not a client or a customer of the Claimants, and therefore the Claimants were workers as defined under limb b of section 230(3) of the Act - they are limb “b” workers. The reasoning for this is found in the nature of pantomime theatre and how this industry specific employment relationship works in practice.

The Nature of Pantomime Theatre

Factual elements of pantomime theatre were highlighted in the tribunal decision to form the basis of the finding of limb “b” worker status. These factual elements can be summarised as follows:

• Pantomimes are seasonal productions, and by their nature do not run for the entire year. However this does not preclude individuals from being workers or lessen their dependancy on an employer

• Individuals commit to rehearsals from late November, with a run of performances from early December to sometime in January and it is unrealistic to say they could work elsewhere during the season

• Once they have committed to the season’s production, likely to be in or around August of that year, they have no further autonomy or independence whether in relation to that production or otherwise from the date rehearsals start until the date the run ends

• Once engaged for the pantomime season, they do not have the power to influence the production or negotiate their own fees

In addition to the above factors, a respectful definition clarified that the Claimants were considered to be ‘Artistes’ as opposed to ‘Key Artistes’ - Key Artistes being the headline celebrities or pop stars, featured and employed by the pantomime companies for its publicity.

Taken together as a whole, these factual elements meant that the Claimants were sufficiently subordinate and dependent on the pantomime company to deserve the protection of the law and the protection of worker status. Judge Norris said:

‘…it is entirely unrealistic to suggest that the Respondents [the pantomime company]… are the ‘client or customer’ of the Claimants’

Reference to the Uber Case: Control

A leading finding by the Supreme Court in 2021, found Uber Drivers to be workers. A fundamental point in the Uber case was that the Supreme Court said that the contract was not the starting point.  Rather than looking at the contract itself, the Supreme Court asked “are these the sort of people who deserve protection of the law and the protection of worker status?”. Therefore, they asked the question: is this the type of relationship parliament intended be covered by statutory employment protection?

A key fact of the Uber case was that the Uber drivers were subordinate and dependent on Uber. They were not able to substitute their services and send in another driver instead. Even though Uber drivers have control over when they work and Uber does not dictate their times of work - differentiating them from an employee - the obligation to work personally means that there is a level of control by Uber.

In respect of control in this case, Judge Norris said:

‘…the Claimants do market themselves to the world in general via their Equity pages and their agents, up to a point; however I consider this akin to using any recruitment website such as Monster, Indeed or Hays, or engaging an Employment consultant or headhunter. They do this for the purposes of securing the role that, once engaged, the production company, whether the respondent or a film or a theatre group - chooses for them to do under the direction and control of the Respondent, and not to provide 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. They are part of a ‘cast’.

How Can The Decision Be Applied?

 The tribunal decision is fact specific and by looking at the facts of the case, you can see whether it applies to your own employment situation. It will be helpful to read the case in full and have a detailed understanding of the facts of the case so that you can observe any similarities.

My advice to anyone who believes they may be affected by anything I have written about in this blog, or who considers they may have similar facts in their own work situation, is to join a union, and if relevant, the Equity Actors’ Union if you have not done so already. Equity has covered this case in detail here.

If you have any questions on any employment matters, we are here to help. Contact us today via Employment@wainwrightcummins.co.uk