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Tribunal overturns profit-share decision in fringe producer’s favour

Pentecost by David Edgar at St Leonard's Church. Photo: Mandy Gasson Pentecost by David Edgar at St Leonard's Church. Photo: Mandy Gasson
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A director ordered to pay the minimum wage to actors involved in a profit-share production has had the decision overturned, in what has been hailed a “landmark legal decision”.

The new ruling means that director and producer Gavin McAlinden, who was taken to a tribunal over a production that took place in 2012, will not have to pay the minimum wage to five actors who submitted claims after the show.

A hearing held at the East London Employment Tribunal ruled that the performers should be classed as self-employed professionals – rather than workers – and are therefore not entitled to the wage.

This comes despite a 2013 tribunal ruling, against which McAlinden successfully appealed, which ordered that the actors involved be paid the minimum wage.

McAlinden said he understood why Equity, which supported the actors, pursued the case, but said: “I am very pleased with the judgement, which vindicates the position that I have held all along. I was and remain very proud of the production and the work that we all put into it collectively. Although I did not make any money from the show, it was a really worthwhile project.”

The dispute began in 2012, when McAlinden produced and directed a production of David Edgar’s Pentecost at St Leonard’s Church in Shoreditch.

The 26 actors in the production had agreed to be paid a share of 60% of any profits. Five actors subsequently made claims for minimum wage plus holiday pay, citing minimum wage legislation.

An Equity spokesperson said: “Of course we are disappointed with this decision, as we have always believed that the Equity members who worked on this production were unfairly treated and deserved to be paid for their time working for Mr McAlinden.”

“This decision clearly turned on facts specific to this case, since a number of similar employment tribunals have found that performers are workers in the eyes of the law and entitled to the employment protections that status confers.”

In 2014, producer Shaban Arifi and director Victor Sobchak were ordered to pay three actors the national minimum wage for work on a fringe show that was advertised as a profit-share, with the performers claiming the production was not a genuinely collaborative process.

The union also confirmed that it would wait to assess the detailed judgement before considering future legal options, which could include an appeal.

During the tribunal, employment judge John Warren said that while his decision was led by the facts of the case, the evidence led him not to regard McAlinden as an “honest witness”.

“It gives me no pleasure to conclude, on the facts, that they [the actors] are not workers,” he said, adding that the conclusion came “with a heavy heart and an undeserving successful respondent”.

John Plews, chair of the Society of Independent Theatres described the decision to class actors as professionals rather than workers as a “landmark legal decision” and said it would have “far-reaching implications”.

He said it would benefit actors who wanted to advertise their theatre credentials on the fringe with a view to being picked up for better paid professional stage work.

“It will certainly help define the status of those who work on the fringe in profit-share productions and are therefore able to advertise their skills to producers, casting directors and other potential employers,” Plews said.

Equity added: “This judgement is about the specific facts of this particular case. So to claim there are any broader ramifications above and beyond the individuals involved here is misleading, and because it is an employment tribunal it doesn’t set legal precedent either.”

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