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Landmark ruling in fringe pay dispute

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Five actors have won an employment tribunal that ruled they should be paid the national minimum wage for a fringe theatre show, despite the engagement having been advertised as profit share.

The action was supported by Equity, with the union claiming that the judgement has served notice on “bogus” profit share on the fringe. It marks the first time that such a case has been taken against a fringe theatre company and, while the ruling does not set a legal precedent, it is thought that it could impact on productions across the sector.

The performers – Mathangi Ray, Taghrid Choucair-Vizoso, Vesna Vujat, Peyman Shameli and Seda Yildiz – took the action against director Gavin McAlinden and his company Charm Offensive Limited, which had produced a revival of Pentecost by David Edgar at St Leonard’s Church in Shoreditch, London, in March 2012. The dispute arose after two of the claimants were dismissed from the production.

Employment Judge Ross concluded that the show was “not a collaborative artistic piece of work” and that the actors had been contracted to work for McAlinden. The actors had undertaken to “personally perform work or services” for the production company, there was an agreement on the times and days which they had to attend rehearsals and that there was a degree of control exercised over them.

Due to these factors, the judge ruled that despite the fact that the show had been clearly advertised as profit share (whereby the actors receive no wage but share in a proportion of the overall profits) and the actors were aware “that it was unlikely that there would be any profit to share”, they should have been paid NMW because they qualified as workers under the definitions of the National Minimum Wage Act and Regulation 2 of the Working Time Regulations 1998.

Speaking to The Stage following the ruling, Vujat said: “We were told what to do, where to work – it was just like a normal job. There was no collaboration as such because we didn’t have any input into the finances. We didn’t know what was going on, there was no open book [revealing the finances to the company].

“What made us take action was that he started firing people – in other words he [McAlinden] was the employer, he was the person with the power.”

Choucair-Vizoso added that the five actors were also unhappy when they found out that some of the crew were being paid.

McAlinden told The Stage he stood by his decision to dismiss two of the actors and felt that he had been clear with all the cast that the production was never likely to make much money.

He added: “It would have been impossible, as an unsubsidised company, to mount a production of Pentecost with a cast of 26 on the fringe as a fully paid production.

“I believe in fair pay for actors. In previous productions, I have raised money and paid actors. I am currently fundraising for a production where the actors will be paid. Pentecost was conceived as a non-commercial venture. A lot of actors had a very positive experience with the production, landed agents and got paid work as a result of their involvement.”

Several other cast members have contacted The Stage expressing support for McAlinden and emphasising they never expected to receive pay on the production.

However, the actors involved with the case said they would encourage others to take action in similar circumstances, while Paul Fleming, the Equity organiser who helped the performers take their case to tribunal, said it was “important that people take these cases when they come up and that we build up a set of case law”.

He added: “This is about the whole industry standing up and saying ‘this is an incredibly creative and production sector of theatre which we want to support and encourage and make reputable’.”

He gave the example of the King’s Head in Islington as a fringe theatre that had adapted its working practices so that it was in tune with employment law.

A decision on how much the actors will be paid has yet to be made.

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