A theatre director has been given the right to appeal a ruling forcing him to pay five actors the national minimum wage, in a case that could have a major impact on the future of the UK’s fringe sector.
At a preliminary hearing review last week, Judge Eady found that the matter should be heard in full at an employment appeal tribunal to address the definition of ‘worker’ that was made at the original employment tribunal. This had found that the performers were due the NMW, despite them having been engaged on a ‘profit-share’ basis, because they were operating as workers.
Gavin McAlinden, who engaged the performers for a revival of David Edgar’s Pentecost in London in 2012 through his company Charm Offensive Limited, said he was happy that the appeal was going ahead because he believes the issue has “broad ramifications” for the entire industry.
McAlinden said he hoped to prove that the performers were acting as ‘professionals’ and not workers, the latter of which would mean they were owed NMW payments.
He said it was on this point that he had been granted a full appeal and hoped to win the case at the full tribunal so that the original ruling could be overturned.
“Most actors out there would regard themselves as professionals. Most of these people are not ‘workers’ as far as I can see, but highly skilled and very developed professional individuals who have spent years perfecting and honing their craft,” said McAlinden.
He added: “This issue has broad ramifications for the entire industry and merits a comprehensive legal examination – which is the reason why I have pressed ahead with the appeal.”
Performers Mathangi Ray,Taghrid Choucair-Vizoso, Vesna Vujat, Peyman Shameli and Seda Yildiz took action against McAlinden’s company after two of the claimants were dismissed from his production of Pentecost at St Leonard’s Church in Shoreditch, London, in March 2012.
At the original hearing, employment Judge Ross concluded that the show was “not a collaborative artistic piece of work” and the actors had undertaken to “personally perform work or services” for the production company. There was also an agreement on the times and days which they had to attend rehearsals and a degree of control had been exercised over them.
Due to these factors, the judge ruled that, despite the fact the show had been clearly advertised as profit-share – under which performers receive no wage but share in a proportion of profits – and the actors were aware “that it was unlikely that there would be any profit to share”, they should have been paid NMW. This was because they qualified as workers under the definitions of the National Minimum Wage Act and Regulation 2 of the Working Time Regulations 1998.
It is expected that the appeal will take place within the next 12 months.
Actors’ union Equity, which is providing legal support to the performers, declined to comment.