As the Christmas theatre season gets into full swing, and the competition to put on the most exciting and spectacular shows intensifies, theatre producers and managers need to be mindful of the various legal trap doors lurking in the wings. A particular concern is the pressure placed on staff, both in front of and behind the curtain, at this business-critical time.
Employers in every profession and sector have a general duty to provide a healthy and safe workplace for employees. This includes ensuring that the work environment is conducive to productivity and free from excessive stress and pressure.
Also, the Equality Act 2010, which covers all employers, is designed to ensure equality of opportunity at work, to protect employees’ dignity and to ensure that complaints can be raised without fear of reprisal. It prohibits discrimination and harassment based on any “protected characteristic” (such as gender, age, race or sexual orientation). In a turbulent work environment, harassment is a particular risk. The term captures any behaviour that has “the purpose or effect of violating a person’s dignity” or creating an “intimidating, offensive or hostile” work environment. So repeatedly chastising a junior stage hand for their mistakes and inexperience could, for example, be unlawful harassment on the grounds of age.
How does an employee maintain dignity as the back end of a pantomime horse?
However, the entertainment world can present some unusual challenges. To give a simple seasonal example, how is an employer supposed to discharge their duty to preserve an employee’s dignity at work as required by law, when that individual’s job is to be the back end of the pantomime horse? Or, in the case of a pantomime comedy duo, how can you show respect for a worker when their role is to be the butt end of somebody else’s jokes or to be repeatedly hit over the head with a saucepan or rubber truncheon? How, for that matter, can front of house staff maintain their dignity when having to advertise flashing merchandise by waving or wearing it in the foyer?
Joking apart, there are serious issues here. The stories are legendary: the demanding directors who push their casts to tearful extremes; bullying diva behaviour by the stars of a production towards backstage staff. This is an industry where only the most determined have any hope of succeeding, and it is an accepted part of the culture that you have to put up with a lot if you want to get on. Worse, the entertainment industry is notorious for accepting extreme behaviour from its ‘talent’ – some might say fetishising it – regarding it a mark of creative genius.
Added to this is another problem that comes with the territory of theatre work. Relationships between co-workers, between directors and performers and so on, can get pretty intense on a production. This pressure cooker environment is exacerbated by a general lack of appreciation for the concept of ‘outside work hours’, this being an industry where people so often work around the clock and where performers often take their fictional persona home with them.
But the audience mood is changing. In the past few years, initiatives such as the anti-bullying forum for the arts, Devoted and Disgruntled, have started to lift the curtain on the issue, aiming to break the silence on bullying in the arts. Language is changing (‘diva’ become ‘bully’, for instance), reports have been conducted for the first time, perceptions are shifting and awareness is rising. All of that means that employees are gradually becoming less prepared to take bad treatment quietly, making employers vulnerable to legal claims if they don’t do enough to protect them and make their workplace mentally and emotionally safe.
The law stipulates that everyone should be treated with dignity and respect at work and that it is employers who are responsible for ensuring this happens. Further, this responsibility extends far beyond bosses’ own actions. They are duty bound to protect their staff from bullying or humiliating treatment by co-workers, even by third parties such as contractors or consultants – and if it comes to it, they are also required to protect their workers from abuse by the audience.
The Advisory, Conciliatory and Arbitration Service Code provides more specific detail as to what an employer’s duty to provide a workplace free from bullying and harassment means in practice. According to ACAS, employers should strive to create a workplace environment where employees don’t have to put up with overbearing supervision, or being overloaded with constant unjustified criticism, and where they are neither ridiculed nor demeaned, nor picked on, nor set up for a fall. Employers should “take all the steps which are reasonably possible to ensure staff members’ mental and physical health, and their safety and wellbeing”. They also have a moral and ethical duty, according to ACAS, not to cause, or fail to prevent, physical or psychological injury. And in a changing cultural climate within the arts and entertainment industries, with staff becoming increasingly prepared to speak out, employers who fail to take this duty seriously leave themselves open to employment law claims.
So what can an employer or manager do to protect themselves from the legal repercussions of the behavioural excesses of others towards their staff?
- Implement a robust anti-bullying policy setting out some examples of behaviour that will be considered unacceptable
Communicate this policy clearly to staff and ensure it is easily visible or accessible
Encourage a culture of openness. Make it clear that any employee who suffers, witnesses or reports bullying or harassment will be taken seriously
Engender confidentiality in reporting and investigation of bullying and other violations of dignity at work
Ensure you have effective HR processes in place to address reports of bullying. Even if you do not have designated HR support, employees need to know how you will deal with a grievance or complaint, and how disciplinary action will be taken against offenders
Secure voluntary support for initiatives that some may prefer not to undertake
Introduce clear casting calls and job descriptions when recruiting, so staff appreciate beforehand what they may be required to do
Be mindful of working time. The entertainment industry is never 9-5, but it is important to make sure that employees have a proper opportunity to rest to prevent ‘burn-out’
Any action employers can take to promote dignity at work, by preventing or tackling bullying, not only helps to foster a happier workplace but can also be used as a defence if facing a claim. An employer is far less likely to be liable for the mistreatment of an employee by a colleague if it can show that it took steps to prevent that behaviour from occurring.
Prioritising dignity at work is the most important thing you can do to ensure that employees turn up for work healthy and motivated during the busy festive performance schedule. The show must go on, after all.
Additional contribution from Louise Singh, expert employment lawyer at Weightmans