An employment tribunal has ruled that two actors previously employed by the Cambridge Shakespeare Festival were actually “workers” rather than volunteers.
This means that the performers were entitled to at least the national minimum wage and other basic employment rights such as paid holidays, minimum breaks and pensions. In breach of these rights, the Festival paid the performers nothing more than £50 and £150 per week respectively, “expenses allowances”.
The judge found that the actors were subject to a “high degree of control” by the director of the Cambridge Shakespeare Festival, Dr David Crilly, which included working “extremely long hours”, six-day weeks and having to hand out leaflets.
Despite the ruling, which took place in August 2023 and was brought by two Equity members involved in the 2022 season, Equity can reveal that the Cambridge Shakespeare Festival is even now employing performers as volunteers, rather than workers entitled to the national minimum wage and employment rights.
As with previous editions, the current 2024 season will be held in the gardens of Cambridge University Colleges and will run until 24 August. According to the ruling, the 2021 Festival season had a budget of over £250,000.
The Cambridge Shakespeare Festival must be held accountable for this ruling, which is another important victory for Equity in reaffirming that performers are, in general, “workers” in law. This means that they are entitled to basic employment rights which cannot be circumvented by an employer’s attempts to portray them as “volunteers” or “self-employed” through false contracts and representations. Members currently employed by the Festival are encouraged to contact the union for support in asserting their employment rights.
“I am truly grateful for Equity’s support throughout this process,” says one of the plaintiffs, Equity member Kit McGuire“Especially now, with ongoing cuts to arts funding and individual artists struggling with the cost of living, it is so important that we value ourselves as workers. This statement has been intended to ensure that our contributors value us as such too. I am delighted with our success in this, which of course would not have been possible without Equity.”
Cambridge Shakespeare Festival
In the summer of 2022, when the two Equity claimants represented at the employment tribunal were hired, the festival celebrated its 35th season. The previous year, it had a budget of over £250,000.
Tickets cost £19 and, according to its website, the festival attracts “over 25,000 visitors” each year. Despite the large crowds and the festival’s budget, actors were invited to audition for “participation on a purely voluntary basis.”
However, once committed:
- The actors had to work “extremely long hours” during six- (and at one point, seven-) day weeks.
- The actors were not allowed to work with other organizations during the festival period.
- The actors had to hand out leaflets twice a week in costume and were told not to take their lunch break until they had finished handing out their leaflets.
- The actors had to learn their lines outside of rehearsals and performances, and Dr. Crilly asked them “ideally not to learn the lines from the first day” of rehearsals.
- Actors had to help dismantle the set (pick up props, equipment, etc.) at the end of each production late at night.
- Actors were expected to do the work themselves, with no possibility of sending a substitute, a requirement that tends to establish someone as a legal worker.
One of the Equity plaintiffs, Kit McGuire, was offered the roles of Antonio/Captain in Twelfth Night and Dauphin/Williams in Henry V, but stopped working for the Cambridge Shakespeare Festival during the season due to working conditions and pay, stating that he felt it amounted to an “exploitative business model”.
Equity’s other claimant, Elizabeth Graham, was offered the roles of Maria/Officer in Twelfth Night and Titania/Hippolyta in A Midsummer Night’s Dream, but was fired and replaced during the season when Dr. Crilly took issue with her informing the director (rather than himself) that she had contracted Covid, and accused her of not helping with the strike.
The judge found that there was a legally enforceable contract, taking into account the exchange of emails in which Dr Crilly offered free accommodation, £50 and £150 per week expenses to the claimants respectively, and payment of all expenses on production of receipts.
Although these terms were accepted, the judge also found that this was a contract conferring employee status, meaning that the claimants had basic employment rights. This was demonstrated, for example, by Dr Crilly’s reasons for dismissing Elizabeth Graham, which the judge said showed that the “Defendant [Dr Crilly] had a significant degree of control over Plaintiffs” and indicated “worker-like subordination.”
This ruling demonstrates that many contracts that the producer or the contractor might perceive as “voluntary” are not actually so, and that the bar for what constitutes a contract is not as high as one might think. The court’s decision therefore also suggests that student productions may be acting illegally when they seek out professionals to work for free. Universities may therefore need to reconsider their policies or advice to students when a student production is part of an academic course.
“Of course, bringing a case like this is the last thing you want to do,” says Equity member and plaintiff Elizabeth Graham. “I am extremely grateful for Equity’s continued support throughout this process and for the solidarity of my colleague Kit McGuire. Fortunately, we reached a good outcome, which I hope will be helpful to other performing arts workers as well.”
“The protections afforded by worker status are essential for all workers, and a strong and supportive union is a true blessing.”
Worker status
It is common for employers to misclassify artists and stage managers as self-employed, thereby denying them the status of “workers” and the basic employment rights that come with it, as was the case here. Equity is working to combat this problem and raise awareness.
Performers and stage managers are often considered “workers” for employment law purposes and “self-employed” for tax and social security purposes. This is legitimate under the law and is known as “dual status.” Most performers and stage managers fall into the intermediate category of “outside(b)” workers, between employees and genuine self-employed workers. “Outside(b)” workers do not have the regularity of employment that characterizes an employee relationship, but are still contracted to perform work personally as part of someone else’s business.
There are some exceptions, such as comedians and one-man shows, where it can be argued that this is genuine self-employment, but when employers treat workers in point b) as genuine self-employed, they are depriving them of their rights, which amounts to exploitation.
If Equity members feel they are being denied their basic employment law rights, they should contact the union for advice. Equity was able to support the two claimants in the case against the Cambridge Shakespeare Festival by advising them of their rights and options, attempting to contact the defendant to reach a resolution, seeking legal advice, pursuing the case legally on their behalf and paying their costs.
More information about Equity members’ rights at work can be found here.
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