Questions of employment status continue to be front and central in the post-pandemic (for now at least) labour market. Central regulation of the gig economy currently seems to be some way off. Certain nettles are being grasped. For example, the Government issued a call for evidence on the increased use of umbrella companies which closed in February 2022 and the grace period offered by HMRC relating to enforcement of the 2021 IR35 regime ended on 6 April 2022.

For now, we are seeing (and likely to continue to see) cases being brought across all sectors asserting employee or worker status and Claimants relying on the Supreme Court decision in Uber BV and ors v Aslam (see our article here) in attempting to do so.

One such interesting recent case is the ET decision in Bassett and others v QDOS Pantomimes Limited and others in which judgment was handed down in early April 2022.

Background

The Claimants were all involved in the production of pantomimes in various capacities e.g. performer, stage manager, technical or support capacities.

They brought claims for holiday pay asserting “limb b” status as workers under section 230(3) of the Employment Rights Act 1996 and Regulation 2(1) of the Working Time Regulations 1998.

The Respondents contended that each of the Claimants carried on a profession or business undertaking for which the Respondents were their client or customer and as such outwith the relevant definition.
Employment law provides for three status of contract: employee, worker or self-employed independent contractor.

Contractual Position

The Claimants all worked under standard template contracts issued by the Respondent and contained very familiar language asserting that “The Artiste is a self-employed contractor and this Agreement is a contract for the provision of services and not a contract of employment. Nothing in this Agreement shall render the Artiste an employee, worker or agent of the Producer.”

The contract also placed restrictions on the Claimants appearing before and after the production run within a 40-mile area.

Also, the Claimants were required to give “first call” to the Respondent and needed permission to perform elsewhere to ensure the Respondent’s production was safeguarded.

Decision

The Claimants were successful and found to be workers (and so entitled to holiday pay) with the Tribunal relying in particular on the following factors:

  • Although the Claimants had agents, the extent to which the agents were able to and did negotiate terms was very limited which was reflective of the Claimants’ “almost total lack of bargaining power and lack of other options”. This was inconsistent with the Claimants genuinely being in business on their own account.
  • The Claimants were paid via payslips (rather than invoicing) albeit neither tax nor national insurance were deducted. Incidentally, the Tribunal found the Respondent’s assertion that all supplier invoices were paid through payroll as highly improbable. Further, the Claimants were effectively paid automatically and then issued with a payslip.
  • Risk was largely with the Respondent, for example, if there was an injury during the production.
  • Sick pay was occasionally paid which was again more consistent with worker or employee status.
  • Once they had committed to a “season” the Claimants had very little control e.g. in relation to scripts, costumes, choreography, composition of songs etc. The witness for the Respondent accepted “the buck stops with us; we have final sign-off”.
  • Whether the Claimants had met senior members of the Respondent team was found not to be determinative.
  • The Claimants’ advertising of their services on certain industry websites did not negate worker status and was effectively the equivalent of LinkedIn for the performing arts. In doing so, the Claimants were not progressing a business they had established.
  • The approach taken by the Supreme Court in Uber (building on the decision in Autoclenz) is that status is a question of statutory interpretation rather than contractual interpretation. The purpose of the legislation is protection for vulnerable workers who are subordinate to and dependent on another person in relation to the work in question and a touchstone of such subordination and dependence is the degree of control over the work or services performed.
  • In the case at hand, the Tribunal found there was a high degree of control and dependence.
  • As for personal service, this was not in dispute between the parties and the Respondent would select one of the understudies it had arranged if a Claimant was ill, for example.
  • The Claimants were significant integrated into the production and they were part of a cast.
  • Equipment was not supplied by the Claimants.
  • The “first call” clause underlined the effective exclusivity of the arrangement.

Although a Tribunal level decision and so not binding on other Employment Tribunals, this case will have significant implications for the performing arts sector and more widely is a helpful example of how such cases are being argued post Uber.