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Employment status: Are actors workers?

7th November, 2014

The recent case of MacAlinden v Lazarov and others UKEAT0453/13 raised the question as to whether actors working under a profit share agreement were ‘workers’ for the purposes of employment legislation and therefore eligible to make a claim to the Employment Tribunal.

In this case, five actors were appearing in a play under an “actor’s contract”. They were remunerated only by way of a share in the play’s profits. Whilst the play was critically acclaimed, it unfortunately did not make any profit, meaning that the five actors received no financial reward for their roles.

Once the play had closed, the five actors made Employment Tribunal claims pursuant to national minimum wage legislation and claimed that they were owed holiday pay. These claims only had prospects of success if the actors were deemed to be workers (for the purposes of employment legislation).

The Employment Tribunal Judge held that the actors were indeed workers, as he considered that they were required to undertake the work personally and that there had been a sufficient degree of mutuality of obligation.

The Respondent appealed this decision on the basis that the Employment Tribunal Judge had not properly considered whether the actors were carrying out a profession or a business undertaking where the other party to the contract was a client or a customer. The Respondent’s reasoning fulfilled the exception to the worker definition.

The Employment Appeal Tribunal agreed with the Respondent’s contention on the basis of witness evidence showing that the individual actors were marketing themselves for their own career development rather than holding themselves out to be an integral part of a joint operation.

The matter has been remitted to a fresh Tribunal and we will await the decision.

For further information and advice in relation to employment status, please contact Claire Brook on 01244 405575 or send an email to [email protected].

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