Actors take legal action against touring theatre company

Two actors contracted to work with a theatre touring company will be allowed to pursue claims relating to working hours and pay after an employment tribunal ruled they were ‘workers’ for the firm, not self-employed.

A preliminary hearing into the case heard that the female actors, both in their 20s, had been contracted by M&M Theatrical Productions, based in Ayr, in January last year to tour theatrical productions in primary schools across the UK.

In June 2023 the first claimant became ill and was certified as unfit to work due to stress and anxiety. The employment tribunal heard that although they wished to return to work, their contract was terminated by one of the company’s directors later that month.

The following month the second claimant attended a remote meeting with the same director.

“They thought the meeting was to have a chat about how things were going, however the second claimant’s contract was terminated [due to] allegations of bullying [against them],” the tribunal documents state.

The pair are making claims relating to the Working Time Regulations 1998, the National Minimum Wage Act 1989 and the Employment Rights Act 1996.

The preliminary hearing was held to determine whether the claimants were, as they maintained, ‘workers’ for the firm, or ‘self-employed’ as the theatre company insisted.

While people who are self-employed have very few employment rights, ‘workers’ have some employment rights, albeit not as many as employees.

The tribunal heard that the theatre company recruits independently from actors who do not have agents as well as via agencies.

Each tour has four actors, with a total of around 70 to 80 actors working during peak season.

‘Evasive’

Employment Judge L Doherty said that during questioning on the scope of the roles the actors were in, the theatre company director was “evasive and was unable to make appropriate concessions”.

“For example, he refused to accept that being on tour limited in any way the ability to undertake other work,” the judge said.

“When it was put to him in cross examination that, for example, an actor could not hold a part-time job in Asda at the same time as being on tour, he responded by saying that would depend on Asda allowing the actor to move around different branches and he was not aware if Asda allowed that.

“He insisted that actors had the freedom to choose not to stay in the accommodation provided by the respondents without qualification as to reality of the economic impact of this.”

‘Considerable control’

Judge Doherty said the evidence showed the theatre company exercised “very considerable control” over many areas of work.

“Actors had to wear a uniform and an ID badge, they had to comply with health and safety regulations in setting up scenery for the play.

“They had some limited personal input into the performance, but had close direction as to how to perform and their theatrical performance was monitored by the respondents who paid unannounced visits to the venues.

“They were restricted as to what they could post on social media [and] there were prohibitions on smoking and drinking.

“If they stayed in the accommodation provided, (which in reality most actors including the claimants had to of necessity) they had to abide by the rules, the accommodation was subject to inspection [and] they had to maintain the costumes provided and maintain the company vehicle.”

“Taking into account the degree of control which the respondent exercised over the claimants, the mutuality of obligations which existed and the requirement to provide personal service… the claimants were properly regarded as workers for the purposes of the claims brought.”

The case will now proceed to a full hearing.