An employment tribunal has ruled two actors previously engaged by Cambridge Shakespeare Festival were in fact ‘workers’, not volunteers.
This means the actors were entitled to at least the National Minimum Wage and other basic employment rights such as holiday pay, minimum rest breaks and pensions. In breach of these rights, the Festival paid the performers nothing aside from £50 and £150 a week respectively “towards expenses”.
The judge found that the actors were subject to a “high degree of control” by the operator of Cambridge Shakespeare Festival, Dr David Crilly. This included working “extremely long days”, six-day weeks, and being made to leaflet.
Despite the judgement – which took place in August 2023 and was brought by two Equity members engaged in the 2022 season – Equity can reveal that Cambridge Shakespeare Festival is even now engaging performers as volunteers, rather than workers entitled to national minimum wage and employment rights.
As with previous runs, the current 2024 season is being staged in the gardens of Cambridge University colleges and runs until 24 August. According to the judgement, the Festival’s 2021 season had a budget in excess of £250,000.
Cambridge Shakespeare Festival must be held accountable to this ruling, which constitutes another major victory for Equity in reaffirming that performers are generally ‘workers’ in law. This means they are entitled to basic employment rights that cannot be circumvented by an engager’s attempts to cast them as ‘volunteers’ or ‘self-employed’ through bogus contracts and statements. Members currently engaged by the Festival are encouraged to get in touch with the union for support in asserting their employment rights.
“I'm really grateful for Equity's support throughout this process,” says one of the claimants, Equity member Kit McGuire. “Especially now, with ongoing cuts to arts funding and individual artists struggling with the cost of living, it's so important that we value ourselves as workers. This claim has been about ensuring our engagers also value us as such. I'm thrilled with our success on this, which of course wouldn't have been possible without Equity.”
Cambridge Shakespeare Festival
In the summer of 2022, when the two Equity member claimants represented in the employment tribunal were engaged, the festival staged its 35th season. In the year prior to this it had a budget in excess of £250,000.
Tickets cost £19 and according to its website, the festival attracts “upwards of 25,000 visitors” each year. Despite the large audience numbers and budget for the festival, actors were invited to audition to “be involved on a purely voluntary basis”.
However, once engaged:
- Actors had to work “extremely long days” over six – and at one point, seven – day weeks.
- Actors were not allowed to take up work with other organisations during the festival period.
- Actors had to leaflet twice a week in costume and were told not to take their lunch break until they had finished handing out their leaflets.
- Actors had to learn lines outside of rehearsal and performance times, with Dr Crilly asking them to be “ideally off book by day one” of rehearsals.
- Actors had to help with striking (packing away the set, props, equipment, etc) at the end of each production late at night.
- Actors were expected to do the work personally, with no ability to send a substitute – a requirement that tends to establish someone as a worker in law.
One of the Equity member claimants, Kit McGuire, was offered the roles of Antonio/Captain in the Twelfth Night and Dauphin/Williams in Henry V but stopped working for Cambridge Shakespeare Festival during the season due to the working conditions and pay, stating that they thought it amounted to an “exploitative business model”.
The other Equity claimant, Elizabeth Graham, was offered the roles of Maria/Officer in Twelfth Night and Titania/Hippolyta in A Midsummer’ Night’s Dream, but was dismissed and replaced during the season as Dr Crilly took issue with her informing the director – rather than himself – that she had caught Covid, and accused her of not helping with striking.
The judge found that there was a legally enforceable contract, taking into account the exchange of emails in which Dr Crilly offered free accommodation, £50 and £150 a week towards expenses to the claimants respectively, and the payment of all expenses on provision of receipts.
Although these terms were accepted, the judge further found that this was a contract conferring worker status, meaning the claimants had basic employment rights. This was demonstrated, for example, by Dr Crilly’s reasons for dismissing Elizabeth Graham, which the judge said showed that the “Respondent [Dr Crilly] had a significant degree of control over the Claimants” and indicated “subordination akin to that of a worker”.
This judgment shows that many engagements that might be perceived by the producer/engager as ‘voluntary’ are in fact not at all, and that the bar for what constitutes a contract is not as high as might be believed. Therefore, the tribunal’s decision also suggests that student productions may be acting unlawfully where they seek professionals to work for free. Universities may, therefore, need to reconsider their policies or advice to students when a student production forms part of an academic course.
“Of course, bringing a case like this is the last thing you want to do,” says Equity member and claimant Elizabeth Graham. “I’m extremely grateful for Equity’s steady support throughout this process, and for the solidarity of my colleague Kit McGuire. Thankfully we arrived at a good outcome, which I hope will also be of help to other performing arts workers.
“The protections afforded by worker status are essential for all workers, and a strong and supportive union is a true blessing.”
Worker status
It is common for employers to misclassify performers and stage management as self-employed, therefore denying them ‘worker’ status and the basic employment rights that come with it, as happened in this case. This is an issue Equity is fighting to challenge and raise awareness of.
Performers and stage management are typically ‘workers’ for employment law purposes and ‘self-employed’ for tax and National Insurance purposes. This is legitimate under law and is known as ‘dual status’. Most performers and stage management will fall into the intermediate category of ‘limb (b)’ workers, in between employee and genuinely self-employed. ‘Limb (b)’ workers do not have the regularity of work that characterises an employee relationship, but still are contracted to do work personally as part of someone else’s business.
There are some exceptions, such as comedians and one-person shows, where there may be a claim to genuine self-employment. But when engagers treat limb (b) workers as genuinely self-employed, they strip them of their rights, which amounts to exploitation.
If Equity members believe that their basic rights in employment law are being denied to them, they should contact the union for advice. Equity was able to support the two claimants in the case against Cambridge Shakespeare Festival by advising them on their rights and options, attempting to liaise with the respondent for a resolution, seeking legal advice, pursuing the case legally on their behalf and paying for the costs.
More information about Equity members’ rights in work can be found here.
