Cambridge Shakespeare Festival Misclassifies Actors as Volunteers

In Kit McGuire and Elizabeth Graham v David Crilly t.a The Cambridge Shakespeare Festival, the employment status of its actors was brought into question. The tribunal held the actors were limb “b” workers under the Employment Rights Act 1996, giving them worker rights. In this article, we consider the case facts, the employment tribunal’s ruling and its reasoning. We also discuss the difference between volunteers and workers and how employment status is ascertained.

If you believe your employment status has been incorrectly categorised, contact Redmans Solicitors today. Our employment law specialists will be pleased to consider your position and advise on the eligibility of a claim.

To arrange a free initial consultation:

The Facts of Kit McGuire and Elizabeth Graham v David Crilly t/a The Cambridge Shakespeare Festival

David Crilly (the respondent) was a sole trader who directed and traded as The Cambridge Shakespeare Festival. The respondent produced Shakespeare plays, which were presented outdoors near Cambridge University between June and August annually. Kit McGuire (the first claimant) and Elizabeth Graham (the second claimant) were involved in such productions in the summer of 2022.

The First Claimant’s Application for the Cambridge Shakespeare Festival

The first claimant was an independent actor with a profile on Mandy (similar to LinkedIn). He responded to an advertisement to perform at the festival over the summer of 2022. The advertisement stated that the respondent would fund actors’ accommodation and “make a token gesture contribution of just £50 per week towards expenses”.

The first claimant applied on 2 February 2022. On 7 April, he was offered parts in two different plays. The email stated that “the financial deal” would be £50 per week and payment of accommodation costs or equivalent accommodation allowance. The first claimant responded by accepting the roles.

A subsequent email received before rehearsals began in June set out certain instructions. It stated that participants should learn their lines before rehearsals as “it will slow the process down if you’re not up to speed”. That email also confirmed that participants would be reimbursed for any expenses on presentation of a receipt.

Actor’s Role, Responsibilities, and Early Departure

During June and July, the first claimant was completely involved in the productions of the Cambridge Shakespeare Festival. He rehearsed for the first play for two weeks. While it was being shown in the evenings of three subsequent weeks, he rehearsed for the second play to be shown over the following three weeks.

In addition to rehearsals and performances, the first claimant agreed to find, arrange, compose, practice, and teach music for the productions. He was also required to deliver leaflets for the productions twice a week in full costume.

On 20 June, he contacted the respondent, stating that he’d no longer like to continue with the second play due to personal reasons. His involvement with the festival, therefore, ended on 31 July.

The Second Claimant’s Involvement with the Cambridge Shakespeare Festival

The second claimant also had a profile on Mandy, representing herself as an actress open to various work. She, too, received offers of parts in two plays during the festival. She was sent similar correspondence to the first claimant, except that she would receive £150 weekly. This was because she had opted for the accommodation allowance.

Additional correspondence occurred between the second claimant and the respondent, including the former requesting three days of N/A at the start of July. Her involvement with the festival was similar to that of the first claimant. She participated in rehearsals, performed in shows, and delivered leaflets in full costume, as required by the respondent.

During rehearsals for the plays, the second claimant became ill with the coronavirus. She contacted Matthew Parker, a director of the Cambridge Shakespeare Festival, via WhatsApp to let him know she couldn’t attend.

On 3 August, the second claimant contacted the respondent directly, stating that she anticipated returning the following Monday. The respondent replied, complaining that she hadn’t helped with “striking” (i.e. dismantling sets after plays) or informed him directly of her illness initially.

They added, “As you didn’t have the professional courtesy to contact me, I have had no option other than to replace you in the production”. The second claimant contested this, listing tasks she’d undertaken during striking. She also explained that she assumed contacting another director regarding her illness would be acceptable.

The respondent then replied, stating: “I can’t manage a festival if members of the team decide to ignore me and the protocols that I put in place”. As such, the second claimant’s involvement with the Cambridge Shakespeare Festival ended on 3 August.

The Employment Tribunal’s Ruling in the Cambridge Shakespeare Festival Case

The Cambridge Shakespeare Festival case was heard by Employment Judge Brown, who considered the case facts in detail. It was for the tribunal to establish the employment status of the claimants, i.e. whether they constituted limb “b” workers under section 230(3) of the Employment Rights Act 1996.

Under this section, an individual is defined as a worker if they enter into or work under a contract, undertaking to perform such works personally for another party who is not a client or customer of any business carried on by the individual.

As such, there are three conditions to be satisfied for an individual to have limb “b” worker status and associated rights. First, the individual must enter into a contract to perform work. Second, the individual must personally perform the work. Third, the other party must not be a client or customer of the individual’s business.

The Claimants Were Found to be Limb “B” Workers

The tribunal found that both claimants satisfied the conditions to be limb “b” workers and thus had the rights of workers. Both had entered contracts with the respondent, demonstrated by the email correspondence between them. The respondent’s emails included details of payment and instructions about tasks.

Additionally, neither claimant was entitled to provide a substitute for the work to be completed and thus was required to perform the work personally. Despite the claimants’ profiles on Mandy, the respondent was not a client or customer of either of them. They both became fully involved in and integral to the Cambridge Shakespeare Festival.

Employment Judge Brown highlighted points indicative of worker status. These included the level of control the respondent exercised over the claimants, the claimants’ inability to provide substitutes, and the requirement for them to work exclusively for the respondent during the festival. The claimants being required to attend all rehearsals and performances and being subject to penalties for failing to do so were also relevant.

Consequently, the tribunal has detailed that a remedy hearing will be scheduled. That is unless a remedy can be agreed between the parties.

Differences Between a Volunteer and a Worker

There is no single definition for “volunteer” under UK law. However, this is broadly understood to mean an individual who engages in an activity to benefit a third party (other than a close relative) without payment. There’s no mutuality of obligation between the parties, i.e., neither is obliged to perform or provide work for the other.

It’s important to note that the true relationship between parties and the employment status of an individual will depend on the facts rather than what’s stated in a contract. As proved in the Cambridge Shakespeare Festival case, certain points can be indicative of worker status. These include payment, a high degree of control, provision of equipment, and whether substitutes can be provided.

Under employment law, workers have numerous rights which volunteers do not. Rights of workers include, for example, the right to National Minimum Wage, paid annual leave, and statutory sick pay. Workers also have protection from discrimination under the Equality Act 2010. As such, worker status is typically preferable to volunteer status for an individual.

If you believe your employment status has been misclassified, the experts at Redmans Solicitors would be pleased to help. Contact our friendly team today to arrange an initial consultation, and we will be able to assess your potential claim.

To get in touch, either: