Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 5982/18IT

5983/18IT

CLAIMANTS: Gerard McCabe

Kerri Quinn

 

RESPONDENT: Northern Ireland Opera

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimants are entitled to holiday pay as set out in this decision.

 

 

Constitution of Tribunal:

 

Vice President: Nr N Kelly

 

Panel Members: Dr Carol Ackah

Mr Michael McKeown

 

 

Representation of the Parties:

 

The claimant was represented by Mr Brian McKee, Barrister-at-Law, instructed by Donnelly & Kinder Solicitors

 

The respondent was represented by Ms Bobbie-Leigh Herdman, Barrister-at-Law, instructed by Elliott Duffy & Garret Solicitors

 

 

Background

 

1. The claimants are actors.

 

2. The respondent is a company limited by guarantee which is engaged in theatrical productions.

 

3. The claimants were engaged by the respondent to perform in a joint production with the Lyric Theatre of the Three Penny Opera by Bertolt Brecht, to be performed at that venue.

 

4. They each received a fee.

 

5. That fee did not contain any element of holiday pay.

 

6. The claimants lodged tribunal claims seeking unpaid holiday pay.

 

7. The claimants argued that they were, at the relevant times, workers for the purposes of the Working Time Regulations (Northern Ireland) 2016 and that they were therefore entitled to be paid holiday pay.

 

8. The respondent argues that the claimants, at the relevant times, were not workers for the purposes of the 2016 Regulations and that they were not entitled to be paid holiday pay.

 

Procedure

 

9. The claims were case managed by telephone conference call on 10 August 2018.

 

10. The central issue was identified; i.e. whether the claimants, at the relevant times, had been workers for the purposes of the 2016 Regulations.

 

11. The two claims were consolidated and were directed to be heard together.

 

12. Directions were issued for the interlocutory procedure and for the exchange of witness statements.

 

13. The hearing was listed for one day on 14 November 2018.

 

14. The witness statement procedure was used. Each witness swore or affirmed to tell the truth, adopted their previously exchanged witness statements as their entire evidence in chief, and moved immediately to cross-examination and re-examination.

 

15. The two claimants each gave evidence. Mr Boswell of the Equity trade union gave evidence on their behalf.

 

16. Mr Lindsay, a director of the respondent company, gave evidence on its behalf.

 

17. The parties made oral submissions at the end of the evidence.

 

18. The parties were directed to provide written submissions, if they wished to do so, and to provide an agreed calculation of actual financial loss by 23 November 2018.

 

19. The tribunal met on 30 November 2018 to consider the evidence and the submissions of the parties.

 

20. Counsel for the respondent sought permission to add a further written submission. Both parties were granted permission to lodge further written submissions by 5.00 pm on Wednesday 7 December 2018. No further submissions were lodged.

 

21. On 10 December 2018, the tribunal invited the parties to make further written submissions on whether the claimants had, at the relevant time, been employees under a short fixed term contract of employment within the meaning of paragraph (a) of the definition of "worker" in Regulation 2(2), by 1.00 pm on 12 December 2018. The parties provided those further submissions.

 

22. It is obviously not the case that the tribunal is obliged to provide a draft decision for comment. It is also not the case that a tribunal is obliged to seek comment if it relies on legislation or case law which has not been advanced by either party. Neither step would be either practicable or desirable in a tribunal of this nature. However, if an entirely new argument appears, or is considered relevant, it can in certain circumstances be appropriate, as in the present case, to ask the parties for comments. That is what the tribunal has done in this instance.

 

23. All the written submissions received from the parties, numbered in order of their receipt, are attached to this decision.

 

Relevant Law

 

24. Directive 2003/88 EC issued on 4 November 2003. It laid down "minimum safety and health requirements" for the organisation of working time. That Directive did not seek to define "worker". However it stated at Article 1(3) that:

 

"This Directive shall apply to all sections of activity, both public and private, within the meaning of Article 2 of Directive 89/391 EEC -"

 

Article 2 of the 1989 Directive stated in paragraph 1:

 

"This Directive shall apply to all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cultural (tribunal's emphasis), leisure etc.)

 

25. The 2003 Directive replaced Directive 93/104 EC and Directive 89/391 EC. That earlier Directive had resulted in the Working Time Regulations (NI) 1998.

 

26. The 2016 Regulations came into force on 28 February 2016 and continued to implement the 2003 Directive. They replaced the 1998 Regulations.

 

27. Regulation 15(1) provides that "subject to paragraph (4), a worker is entitled to four weeks annual leave in each leave year."

 

Regulation 16 provides for the entitlement to an additional 1.6 weeks.

 

28. Regulation 20 provides that a worker taking such annual leave is entitled to be paid "at the rate of a week's pay in respect of each week of leave." Like the 1998 Regulations, it provided at paragraph (2) that Articles 17 to 20 of the 1996 Order shall apply for the purpose of determining the amount of a week's pay.

 

29. Regulation 2(2) provides a definition of "worker". It states in identical terms to the 1998 Regulations;

 

"Worker means an individual who has entered into or works under (or, where the employment has ceased, worked under) -

 

(a) a contract of employment, or

 

(b) any other contract whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

 

and reference to a worker's contract shall be construed accordingly."

 

30. Regulation 43(1)(b) provides that a worker may present a complaint to an Industrial Tribunal that an employer has failed to pay the whole or any part of the amount due under Regulation 20.

 

Issues

 

31. The factual background to these claims has largely been agreed. It was agreed between the parties at the start of the hearing that the claimants had not been employees working under a contract of service or of employment for the purposes of paragraph (a) of the definition of worker in Regulation 2(2). The parties therefore agreed that the relevant part of the definition of "worker" in the 2016 Regulations was in paragraph (b) of that definition in Regulation 2(2); the claimants either qualified as "workers" under that paragraph, or they did not qualify at all. With respect to the parties, the tribunal, having heard the evidence, and having examined the contracts, does not accept that it is obvious that the claimants were not working under contracts of employment and therefore does not regard paragraph (a) as irrelevant. This is a question of law: not a question of fact. The tribunal does not regard itself as bound by any concession made by the claimants in this respect. As indicated above, written submissions were invited from the parties in relation to paragraph (a).

 

32. For the purposes of paragraph (b) of the definition of "worker" it was agreed by the parties that the claimants had entered into a written contract and that they had each undertaken to personally perform work for another party.

 

33. The remaining issues for the determination of this tribunal were:-

 

(i) the identification of the relevant contracts;

 

(ii) whether the contracts were contracts of employment for the purposes of paragraph (a) of the definition of "worker" in Regulation 2(2);

 

(iii) whether the contracts were "any other contract" as described in paragraph (b) of the definition of "worker" in Regulation 2(2); and if the answer is yes, whether the status of that other party to such contracts had been that of a client or a customer of any profession or business undertaking carried on by the individual claimants.

 

Relevant Findings of Fact

 

Gerard McCabe

 

34. Mr McCabe has been a professional actor for approximately 20 years.

 

35. He is represented by a theatrical agent, Infinity Artist Management Ltd (Infinity). Mr McCabe's CV, with pictures and relevant details, such as press clippings, is available on Infinity's website. That website is open to the general public on a normal Google search. However, it is unlikely that many members of the general public would be motivated to make such a search. The tribunal is satisfied that Infinity maintains the website, not to entertain random web browsers but to seek engagements with a small section of that public; producers looking for actors.

 

36. Anyone seeking the services of actors for a theatrical production could submit a casting brief to the theatrical agent. The theatrical agent would then respond to the casting brief and would negotiate the terms of any resulting contract.

 

37. The contract between the claimant and Infinity was in standard terms. Infinity would seek to promote Mr McCabe and to obtain acting roles for him. It would negotiate terms but would seek his agreement before entering into any binding arrangement on his behalf. Mr McCabe undertook to maintain his subscription to an online service known as "Spotlight" and to Equity. He agreed to pay Infinity a commission on earnings. If Mr McCabe secured any engagement directly with a theatre or a production company, he undertook to refer that engagement to Infinity immediately after the first contact, to enable Infinity to negotiate the appropriate contract.

 

38. The contract between the claimant and Infinity stated in paragraph 8R:

 

"The client (Mr McCabe) is solely responsible for all payments relating to the client's income tax, national insurance contributions, VAT (if registered) and the client hereby indemnifies the Agent and shall keep the Agent indemnified in full in respect of all such liabilities."

 

The contract was not one of employment between Mr McCabe and Infinity. It was expressly a contract between a client and an agent.

 

39. Mr McCabe paid a subscription to Spotlight which published a detailed CV which was made available online to interested subscribers such as casting agents and theatres. It was not open to the general public.

 

40. Ultimately, it would be up to Mr McCabe to decide whether he would accept any roles offered to him, on the terms negotiated by Infinity. He could be influenced by financial and other terms and by career progression.

 

41. In 2017, Mr McCabe was approached directly by the casting director of the Respondent and offered what was described as an "ensemble" part in the production of the Three Penny Opera by Bertolt Brecht. That was a joint venture between the Respondent and the Lyric Theatre. It was to take place at the Lyric Theatre.

 

42. Mr McCabe referred the offer to Infinity to negotiate an appropriate contract.

 

43. The fees paid for performances at the Lyric Theatre did not prove to be negotiable. The standard payment of £500.00 per week to an actor increased marginally each time that actor had appeared in the Lyric. Mr McCabe was offered £540.00 per week on this occasion. The total payable was paid in two lump sums through his agent, but it was based on a weekly fee. While Infinity attempted to negotiate that fee, it "didn't get very far". Since Mr McCabe was already based at Belfast, other payments in relation to living and travelling expenses did not arise.

 

44. On 28 November 2017, Mr McCabe entered into a written contract with the Respondent to act in certain roles in the production. He undertook to be available for rehearsals and performances between 2 January 2018 and 10 February 2018.

 

45. Paragraph 2.3 of that contract stated:

 

"Please be advised that as of April 6 ^th 2014, all entertainers, persons employed as actors, singers or musicians or in any other similar capacity who are engaged under a contract for services will be subject to taxation and national insurance as self-employed earners. It is each individual's responsibility to ensure that they are registered as self-employed with HMRC and make the necessary payments to HMRC as and when due."

 

46. Mr McCabe missed one rehearsal because of illness. He did not miss any performances.

 

47. At the time of the rehearsals with the Respondent, he did other unrelated work in the Waterfront Theatre. However, that other work commenced at 7.00 pm, after rehearsals with the Respondent had concluded at 6.00 pm. His other work did not interfere in any way with the performance of contracted work for the Respondent.

 

Kerri Quinn

 

48. Ms Quinn had been a professional actor for 14 years.

 

49. She is represented by a theatrical agent; Cowley, Knox and Guy (CKG). CKG's website does not contain a detailed CV for Ms Quinn or for other actors. It is not available to the public.

 

50. The contract between Ms Quinn and CKG was in standard terms. CKG would seek to promote Ms Quinn and to obtain work for her. It would negotiate contractual terms but necessarily would have to seek her consent before entering into any binding arrangements on her behalf. Ms Quinn undertook to maintain her subscription to Spotlight and to Equity. If she was contacted directly by a theatre or by a production company, she undertook to refer that potential engagement to CKG to enable CKG to negotiate contractual terms.

 

51. The contract between Ms Quinn and CKG stated:

 

"2.6 At no time will CKG become the employer of the artiste, only the appointed Agent to handle these contracts. The employer will be the company to whom the artiste's services are offered and contracted through CKG."

 

"3.2 For the purposes of income tax, (tribunal's emphasis) the artiste will be considered to be self-employed and CKG will make no deductions in relation to tax."

 

52. Ms Quinn also paid a subscription to Spotlight which published a detailed CV which was made available on line to interested subscribers such as casting agents and theatres. It was not open to the general public.

 

53. Ultimately, it would be up to Ms Quinn to decide whether she would accept any roles offered to her, on the terms negotiated by CKG. She could be influenced both by financial and other terms and by career progression.

 

54. In 2017, she was approached by Mr Sutcliffe, a production director employed by the Respondent. She was offered a particular role in the Three Penny Opera production. She went on to take part in the audition process but, in her case, that had been to an extent a formality. When she was offered the role, she referred the matter to CKG to negotiate the terms of the contract.

 

55. As with Mr McCabe, the level of fee was determined in accordance with the rules of the Lyric Theatre. Given the number of occasions on which she had previously performed in that location, her fee was £580.00 per week. Again, while the total amount payable was paid in two lump sums through her agent, it was based on a weekly fee.

 

56. On 24 October 2017, Ms Quinn entered into a written contract with the Respondent to act in a particular role in that production. She undertook to be available for rehearsals and performances from 2 January 2018 to 10 February 2018.

 

57. Paragraph 2.3 of that contract stated:

 

"2.3 The performer shall be responsible for all matters relating to tax, self- assessment and national insurance. Please complete the BACS form on the back page and return with your contract."

 

Equity

 

58. Equity provides a number of industry standard contracts for performers. These contracts reflect collective agreements between Equity and various theatrical organisations. Some production companies and theatres use those contracts. Not all do so. The Lyric Theatre does so and the Respondent does not.

 

59. Those industry standard contracts, which were not used in the present cases, provided for holiday pay to be paid to actors such as the two claimants. For example, the standard contract for opera singers provides at paragraph 9:

 

"The artist shall be entitled to 28 days paid holiday a year, pro rata. The 28 days include statutory holidays. Provided that:

 

9.1 A Manager shall at the expiration of the engagement, pay up (sic) to the artist's (sic) four days in lieu of any holiday to which he/she shall have become entitled but shall not have taken."

 

60. The opera singers' contract also states at 14.8 and 14.9:

 

"Maternity Leave.

 

The artist shall be entitled to statutory maternity pay in accordance with the relevant legislation from time to time in force."

 

 

"Paternity Leave.

 

The artist shall be entitled to statutory paternity pay in accordance with the relevant legislation from time to time in force."

 

DECISION

 

First Issue

 

The identification of the relevant contracts.

 

61. The contracts, which have to be considered by the tribunal to determine whether or not the claimants' were at the relevant time "workers" for the purposes of the 2016 Regulations, are the contracts that they entered into with the respondent. In those contracts, the two claimants each agreed to provide personal services for the respondent. They made several specific commitments in relation to availability and in relation to attendance at rehearsals and performances. In return, the respondent entered into a commitment to pay specified fees to the claimants.

 

62. The separate contracts which had been entered into by the two individual claimants with their two theatrical agents are not directly relevant to the question before the tribunal. Those contracts were standard contracts between a client and an agent, whereby that agent agreed to perform certain services, such as attempting to find work for the client, and whereby the clients undertook to pay commissions and to maintain their subscriptions to Spotlight and to Equity. Those contracts did not relate directly to the performance of the services which are relevant to the present case ie the participation of the two claimants in the Opera production on foot of their contracts with the respondent.

 

Statutory Interpretation

 

63. The second and third issues centre upon the proper interpretation of the term "worker" as it appears in the 2016 Regulations.

 

That is a question of interpretation where the proper approach to be taken by the present tribunal must be distinguished from that taken by the tribunal in relation to the first issue in the recent case of Agnew and Others v the Chief Constable (employmenttribunalsni.gov.uk) and from that taken by the GB Court of Appeal in Gilham v Ministry of Justice [2017] EWCA Civ 2220. In each of those cases, the legislative provision which required interpretation was an entirely domestic provision without any EU underpinning. In the Agnew case the matter raised in the first issue before that tribunal was the proper interpretation of the Employment Rights (Northern Ireland) Order 1996. In the Gilham decision, the issue before the tribunal was the proper interpretation of the Employment Rights Act 1996.

 

In the present cases, the situation is markedly different. The legislative provision which requires interpretation is that contained within the 2016 Regulations. Those Regulations are a transposition of the Working Time Directive 2003/88/EC. On that basis, the approach to be undertaken by the tribunal in relation to the proper interpretation of this provision must be different from that undertaken by the tribunal in Agnew in relation to the first issue in that case, or by the GB Court of Appeal in Gilham.

 

64. It is trite law to state that such Regulations, which transpose into domestic law a EU Directive, must, so far as possible, be construed to give effect to the objective of the Directive which they were designed to implement. - See Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR 1-4135. That teleological or purposive approach has to be contrasted with the more text-based approach typical of the interpretation of domestic-based legislation.

 

It is equally clear that there are limits to what can be done by way of purposive construction where the respondent is a private company rather than part of the domestic state. The EAT stated in Byrne Brothers (Formwork) Ltd v Baird & others (EAT/542/01):

 

"8(4) - While, of course, the Regulations must be construed, so far as possible so as to be compatible with the requirements of the Directive, it is not possible, at least in a claim against an employer who is not "an emanation of the state", frankly to disapply the explicit provisions of a statutory instrument."

 

65. Therefore, the definition of worker, whether in paragraph (a) of the definition in Regulation 2(2) or in paragraph (b) of that definition must, if possible, be given an interpretation which is consistent with the purpose of the Directive, which is to extend the relevant protection to all sectors of activity in the economy, including to the cultural sector.

 

Second Issue

 

Whether the contracts were contracts of employment for the purposes of paragraph (a) of the definition of "worker" in Regulation 2(2).

 

66. The distinction between an employee (second issue) and a worker in the extended sense (third issue) can be difficult to distinguish in some cases.

 

Standing back from the statutory definition as worded in the 2016 Regulations, the distinction between workers and non-workers for the purposes of EU law is the distinction between those who are employed and those who are self-employed. Those who fall within the former category can be 'employees' in the old fashioned sense as set out in paragraph (a) or workers in the more extended sense, as set out in paragraph (b). Many of the relevant characteristics which help to identify either employees or workers will be common to both.

 

67. The contracts are described in the Relevant Findings of Fact above. They were for relatively short periods of time, just under six weeks. Actors frequently move from one contract to another, and from one location to another. Unless they are fortunate enough to be engaged in a lengthy production, their contracts are often for relatively short periods.

 

The fact that a contract is for a short duration does not, of itself, necessarily mean that such a contract is not a contract of employment.

 

68. In Cornwall County Council v Prater [2006] IRLR 362, the Court of Appeal (GB) considered the case of a teacher who had been engaged, almost continuously, for a period of ten years as a home tutor to disadvantaged pupils. The issue in that particular case was whether the claimant had been continuously employed throughout the period of ten years. That issue is irrelevant to the present cases. What is relevant is how the Court of Appeal (GB) regarded each of the individual contracts, which each might have been for periods as short as a few months.

 

The Court held that each such contract was a contract of employment. It stated:

 

"43. - There was a mutuality of obligation in each engagement namely that the county council would pay Mrs Prater for the work which she, in turn, agreed to do by way of giving tuition to the pupil for whom the council wanted her to provide private tuition. That to my mind is sufficient 'mutuality of obligations' to render the contract a contract of employment if other appropriate indications of such an employment contract are present".

 

69. The Court of Appeal (GB) stated in Quashie v Stringfellows Restaurant Ltd [2013] IRLR 99.

 

"10. - Typically an employment contract will be for a fixed or indefinite duration, and one of the obligations will be to keep the relationship in place until it is lawfully severed, usually by termination on notice. But there are some circumstances where a worker works intermittently for the employer, perhaps as and when work is available. There is in principle no reason why the worker should not be employed under a contract of employment for each separate engagement, even if of short duration, as a number of authorities have confirmed - ".

 

"12. - However whilst the fact that there is no umbrella contract does not preclude the worker being employed under a contract of employment when actually carrying out an engagement, the fact that a worker works only casually or intermittently for an employer, may depending on the facts justify an inference that when he or she does work, it is to provide services as an independent contractor rather than as an employee."

[Tribunal's emphasis]

 

70. The Court of Appeal (GB) therefore did not suggest in either case that a contract of limited duration could not be a contract of employment.

 

71. In Windle v Secretary of State for Justice [2017] 3 All ER 568, the Court of Appeal (GB) considered the status of interpreters who worked for the Courts and Tribunals Service. They did quite a lot of work but on a case-by-case basis. As part of its consideration of Section 83(2)(a) of the Equality Act 2010, it concluded:

 

"(8) - The first - "a contract of employment" - means a contract of service."

 

72. In looking at the related question of whether the interpreters had acquired the status of worker in the extended sense (see the third issue in the present cases) the Court of Appeal in Windle stated;

 

"23. I do not accept that submission. I accept of course that the ultimate question must be the nature of the relationship during the period that the work is being done. [Tribunal's emphasis] But it does not follow that the absence of mutuality of obligation outside that period may not influence, or shed light on, the character of the relationship within it. It seems to me a matter of common sense and common experience that the fact that a person supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a degree of independence, or a lack of subordination in the relationship while at work which is incompatible with employee status, even in the extended sense".

 

That cannot mean that, of necessity, where a contract is of a limited or fixed duration, it cannot be a contract of employment. With every fixed term contract, of whatever length, there is a lack of mutuality of obligation and a degree of independence outside that fixed term. The important issue is the relationship which existed between the claimants and the respondent during the, approximately, six weeks of the production. The relationship, or lack of any relationship, outside that period cannot be determinative. If it were, there would be no short fixed term contracts of employment. It has, however, to be considered, as part of a balancing exercise, when assessing a range of factors against the statutory test.

 

73. The term "contract of employment" is not defined in the 2016 Regulations or in the Working Time Directive. However, (see Windle above), the terms "contract of employment" and "contract of service" are identical in meaning. The latter is the more archaic version of the former.

 

74. There is no easy definition of an "employee", a "contract of employment" or a "contract of service". The correct approach is to balance a range of factors and to reach a common sense decision on the basis of those factors.

 

75. An early definition appeared in Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance [1968] 2 QB 497;

 

"A contract of service exists if these three conditions are fulfilled.

 

(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.

 

(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.

 

(iii) The other provisions of the contract are consistent with its being a contract of service -".

 

76. One of the factors to be taken into account in deciding whether a contract is a contract of employment (or of service) is whether the individuals concerned ie either party to the contract, regarded the claimant's position as being that of a self-employed worker. In the present cases both the claimants had accepted self-employed status for HMRC purposes. That is an indication of self-employed status, but no more than an indication. It is commonly recognised that in many areas of employment, that status is used for administrative convenience or for financial benefit to either or both parties to the contract and that it does not necessarily provide a definitive answer in relation to correct status. In Autoclenz Limited v Belcher [2011] IRLR 820, the claimants had been categorised for some considerable time as self-employed workers and that status had been recognised by the HMRC. That had been to the financial advantage of the claimants and indeed their employer. However the Court of Appeal and the Supreme Court both recognised that a tribunal should take an objective view in relation to status. Smith LJ stated that a person should not be estopped from contending that he was an employee "merely because he has been content to accept self-employed status for some years."

 

77. In FV Kunsten Informatie En Media v Staat Der Nederlanden [2015] All ER (EC) 387, the ECJ stated at paragraph 36, in relation to the extended meaning of 'worker':

 

"It follows that the status of 'worker' within the meaning of EU law is not affected by the fact that a person has been hired as a self-employed person under national law, for tax, administrative or organisational reasons, as long as that person acts under the direction of his employer as regards, in particular, his freedom to choose the time place and content of his work -, does not share in the employer's commercial risks - and for the duration of that relationship, forms an integral part of that employer's undertaking -."

 

In that case, a collective labour agreement had been reached for the pay and conditions of substitute members of orchestras. The substitutes fell into two categories; firstly substitutes who were engaged as direct employees and, secondly, substitutes who were regarded as self-employed. The issue was whether the collective agreement had contravened anti-competition rules by including "undertakings", when it also applied to self-employed substitutes. The ECJ held that it did not do so. It described the self-employed substitutes as 'false self-employed'.

 

78. In the present cases, the tribunal does not regard the claimants' status for HMRC purposes as determinative. Given the terms of the relevant contracts, it seems that they were, for the duration of the contracts, "false self-employed" to use the terminology of the ECJ.

 

79. Another factor to be taken into account is that a contract of employment will generally require personal service on the part of the employee. In many cases, this has resolved to a discussion about whether or not and, if so, to what extent, the individual in question can provide a substitute to carry out work on his own behalf. In the Ready Mixed Concrete case (above) the individual concerned, a driver, was held to be an independent contractor. One of the critical features had been that he had not been required to personally drive the relevant vehicle. He had been allowed to provide a substitute driver who could operate the vehicle on his behalf.

 

In the present cases, there is absolutely no question of substitution being permitted or even contemplated by the respondent. The two claimants had been chosen specifically by and recruited by the respondent to perform their roles personally.

 

The tribunal heard no evidence in relation to "understudies". However, if there had been understudies held in reserve for the roles played by the claimants, there was no evidence that it had been up to the claimants to provide those understudies. There was no contractual provision to that effect.

 

80. In Pimlico Plumbers Limited v Smith [2017] IRLR 323, Etherton MR dealt with the issue of substitution in relation to the statutory definition of "worker" which had required "personal service". Although the case went further to the Supreme Court, nothing further was said at that level on this point;

 

"- In the light of cases and the language and objects of the relevant legislation, I would summarise as follows the applicable principles as to the requirement for personal performance. Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance."

 

81. As indicated above, in the present cases, there was absolutely no possibility of substitution of any nature, with or without the permission of the respondent.

 

82. Another factor to be considered has been described as "mutuality of obligation" ie an obligation on the employer to provide work and an obligation on the employee to do it.

 

Looking at the nature of the relationship and the nature of the work at the time at which the work was performed, it is clear that, in the present cases, detailed contractual arrangements had been agreed in relation to the hours and the days on which the claimants had to be present and in relation to the provision of work by the respondent. Similarly detailed arrangements had been agreed in relation to pay.

 

83. In Cotswold Developments Construction Limited v Williams [2006] IRLR 181, the EAT stated that "employment" tends to need mutual obligations, whereas the extended "worker" definition tends to concentrate on the element of personal service by the individual and not on the obligation of the employer to provide work. It suggested a four step test;

 

"(i) was there one contract, or a succession of shorter ones?

 

(ii) If one contract, did the claimant agree to undertake some minimum (or at least, a reasonable) amount of work for the company in return for pay?

 

(iii) If so, was there such control as to make it a contract of employment?

 

(iv) If there was insufficient control (or some other factor negativing employment) was the claimant nevertheless obliged to do some minimum (or reasonable) amount of work personally, this qualifying him as a worker?"

 

84. In the present cases, there was one contract in relation to each claimant; albeit of limited duration. That limited duration, in itself, as indicated above, does not rule out a contract of employment. It is also clear that the claimant agreed to undertake specific work in return for pay. It is also clear that there had been a significant degree of control. In the present cases, (ii) and (iii) above would be answered in the affirmative.

 

85. Another test applied to determine whether there was a contract of employment is described as the "control test". In general, an employee does whatever his employer tells him to do.

 

86. In White v Troutbeck SA [2013] IRLR 949, the Court of Appeal considered the case of claimants who were caretakers of a farming estate which had been owned by an off-shore company. The owners rarely visited the estate. However they expected it to be maintained and prepared for their occasional visits. The issue was whether the claimants had been employees. At first instance, the Employment Tribunal took the view that there had been an insufficient element of control in that case. The claimants had been left very much to themselves as to how they conducted their duties. The EAT overturned that decision. The EAT held that in modern circumstances, the relevant test had to recognise that many employees had substantial autonomy in how they performed their duties. At paragraph 45 the EAT stated "the question is not by whom day to day control was exercised but with whom and to what extent the ultimate right of control resided."

 

That was upheld by the Court of Appeal (GB).

 

87. In the present cases, there may have been some element of artistic license which might have been afforded to the two claimants in the performance of their roles. Equally it may not have been. It all depended on the director. A total right of control resided with the respondent. It could direct exactly where the two claimants stood on the stage, what lines they uttered, how those lines were uttered, what costumes they wore, etc.

 

The final submission from the respondent suggested at paragraph 5 that:

 

"It is accepted that the claimants were under the direction of an artistic director during the relevant period. It is, however, the very nature of what it is to be an actor or an actress that a performer will bring an individuality to each role which is not controlled by any director producer or otherwise."

 

88. The tribunal does not accept the respondent's argument in relation to the control test. It is not uncommon that employees bring a level of individual skill to their jobs; whether as a doctor or a driver or in any other role. Equally it is not uncommon (see Troutbeck above) for employees to have significant input into how they perform their jobs. However the important issue is the ultimate control rested with the respondent. It could direct the employees to perform their duties in a different manner; in a manner that it determined.

 

89. Another factor to be taken into account in deciding whether an individual was an employee is what is known as the "organisational test". In Stevenson Jordan and Harrison Limited v MacDonald and Evans [1952] 1 TLR 101, the Court of Appeal stated;

 

"Under the contract of "employment" a man is employed as part of the business, whereas under a contract for services his work, although done for the business, is not integrated into it but only accessory to it."

 

The issue is therefore whether, and to what extent, the individuals have been integrated into the respondent's organisation. Looking at the nature of the work and the nature of the relationship between the claimants and the respondent at the time the work was performed, it is clear that the individual claimants were wholly integrated into the performance and into the business conducted by the respondent. They were fully a part of the work of the respondent and were not simply providing services in the same way as a self-employed contractor might have provided services.

 

The respondent accepted in their final submission that the claimants had been "immersed in the respondent's production" at a relevant time. It argued however:

 

"The claimants were not integrated into Northern Ireland Opera as a production company but were accessories to the relevant production for the relevant period of time."

 

The claimants had not been part of the administration or core functions of the respondent's organisation at the relevant times. They had not been involved in setting up or sourcing productions in general; any more than someone employed to work in any other capacity in relation to a specific production. However, it is not a requirement that an employee has to be integrated into the administration or the core function of an organisation. It is at best merely an indication.

 

90. Another test is what is known as the "economic reality" test. That requires an assessment of the opportunities for profit and loss and the degree, if any, to which the worker was required to invest in the job by cash or time or by the provision of tools or equipment, together with the skill required for the work and the permanency of the relationship. In essence, the question is whether the claimant was a small business person, or a person operating a profession, rather than an employee.

 

91 In the case of MacAlinden v Lazarov and Others UKEAT/0453/13, a decision relied on by the respondent in the present cases, the actors in a low budget 'fringe' production had operated on a profit share basis. They had invested their time and efforts with no guarantee of a return. To use the words of FV Kunston above, they had shared in the commercial risks of their employer. In any event, that decision focussed on the approach of the Employment Judge at first instance, and in particular on his failure to give adequate reasons. Little of assistance can be gleaned from that decision.

 

92. In the present cases, the claimants were not required to and did not invest in the production. They simply provided their services in exactly the same way as an employee would provide their services in any other area of work. Their pay was guaranteed and not subject to commercial risk.

 

93. All the above factors have to be taken into account in a balancing exercise to properly determine whether a contract is a contract of employment (or of service), rather than a contract of either a worker in the extended sense or of a self-employed individual.

 

94. Hall (HM Inspector of Taxes) v Lorimer [1994] IRLR 171 was, as the name suggests, an income tax case, where the Special Commissioner had determined that an individual had been self-employed rather than an employee. That individual had been a vision mixer for TV productions and had had 580 separate engagements over approximately 800 days. Each engagement had usually been extremely brief ie for a day or two. The longest had been for ten days. Mummery J heard an appeal from the Special Commissioner who had held that the individual had been self-employed for income tax purposes. He stated:

 

"- This is not a mechanical exercise of running through items on a check-list to see whether they are present in, or absent from a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and making an informed considered qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.

 

The process involved painting a picture in each individual case. As Vinelott J said in Walls v Sinnett [1986] 60 TC 150:

 

"It is, in my judgement, quite impossible in a field where a very large number of factors have to be weighed, to gain any real assistance by looking at the facts of another case and comparing them one by one to see what facts are common, what are different and what particular weight is given by another tribunal to common facts. The facts as a whole must be looked at, and what may be compelling in one case in the light of all the facts may not be compelling in the context of another case."

 

95. The limited duration of the contracts and the fact that the individuals were content to describe themselves as self-employed, are factors which point away from the status of employee. However the degree of control, the necessity of personal service, the lack of commercial risk, the organisational integration and the mutuality of obligation all point towards the present contracts being short-term contracts of employment.

 

96. In Lorrimer (above) both Mummery J and the Court of Appeal held that the individual had been self-employed for income tax purposes. At first glance, that case and the present cases have some similarities. In particular, each involve contracts of limited duration. However in Lorrimer the individual had been engaged on extremely short contracts; much shorter than in the present cases. Furthermore, when bookings had clashed, he had, with the consent of the production company, provided a substitute; something which would not have been allowed in the present cases.

 

However, as Mummery J indicated (see previous paragraph), there is perhaps little to be gained by seeking to draw a comparison, factor by factor, with a decision reached in relation to another case, on different facts, and in a different context (income tax). The important thing is to stand back from the accumulation of detail in the present cases and to make a decision on the basis of the overall picture in the context of the present cases.

 

97. The tribunal therefore determines that the claimants, while working for the respondent in the relevant production had been working under a contract of employment for the purposes of paragraph (a) of the definition of "worker" in Regulation 2(2) of the 2016 Regulations.

 

While the contracts had been of a fixed duration, that duration, six weeks, had not been insignificant. They were obliged to perform their duties personally, with no possibility of a substitute. They were at all relevant times under the direction and control of the respondent. They worked for payment; although that was paid in two lump sums through an agent, it was based on a weekly wage.

 

The claimants were clearly in a subordinate role to the respondent, both in seeking work and in performing it.

 

It is not correct to say, as the respondent has argued, that each of the claimants had "actively marketed his services as an independent person to the world in general" (see paragraph 53 of Cotswold Developments Construction Ltd v Williams [2006] IRLR 181). They each used theatrical agents, not to market their services as an independent person to the world in general, but to seek employment in their chosen trade from a particular group of potential employers. That seems little different from a typist registering his or her availability with Grafton for temporary or short-term jobs as a typist.

 

The respondent argued that it had been significant that the claimants were able to work for other employers. However, that ability is not inconsistent with employment. What is important in the present cases is that the claimants had not been at liberty to work for another employer during times when they had been required under contract to work for the respondent. The tribunal does not accept the argument that there had not been a "traditional structure" of employment. There is nothing non-traditional or unusual in an employee being permitted to work for another employer, even one in the same industry, outside contracted working hours.

 

Looking at all the various factors together, the tribunal concludes that the claimants had been employees working under contracts of employment for the relevant six week period.

 

98. If the tribunal is incorrect in its conclusion on the second issue, and if the claimants had therefore not been working under a contract of employment for the purposes of the 2016 Regulations, the next issue for determination is the third issue ie whether they qualified as "workers" in any event under paragraph (b) of the definition of "worker" in Regulation 2(2). Many of the points discussed above will be equally applicable to that issue.

 

Third Issue

 

Whether the contracts were "any other contract" as described in paragraph (b) of the definition of worker in Regulation 2(2) and if the answer is yes, whether the status of that other party to such contacts had been that of a client or customer of any profession or business undertaking carried on by the individual claimants.

 

99. The definition of "worker" as it appears in Regulation 2(2) of the 2016 Regulations is in slightly wider terms than the definition of "employment" which appears elsewhere in anti-discrimination statutes. For example, the Sex Discrimination (NI) Order 1996 states at Article 2(2) that:

 

"'employment'" means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly."

 

The Race Relations (NI) Order 1997 at Article 2(2) uses identical terms.

 

Like those other provisions, Regulation 2(2) first of all refers to standard contracts of service or of employment which relate to employees. Like those other provisions it then refers to engagement under "any other contract" to personally perform work or services for another party. Where it goes further is that it states that the other party to that contract should not be a person whose status is by virtue of that contract that of a client or customer of any profession or business undertaking carried on by the individual.

 

100. In essence, however, the definitions are the same. It has been the case for some time in EU litigation that the distinction between individuals who are workers as a result of a contract to personally perform services for another, and those who are not workers as a result of such a contract, is the distinction between those who are either employed or quasi-employed and those who are in effect self-employed and operating a business.

 

The 2016 Regulations uses more words to make that clear but the same principle applies as elsewhere in the anti-discrimination statutes.

 

101. In the ECJ decision in Lawrie-Blum v Land Baden-Wurttemberg [1987] ICR 483, Advocate General Lenz stated in his opinion that the term "worker" covered any employed person who was not self-employed. The Court stated at paragraph 17 of its judgment;

 

"That concept (ie of "worker") must be defined with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration."

 

 

102. In Kurz v Land Baden-Wurttemberg [2002] EC 1-10691, the Court stated at paragraph 32 that;

 

"32. - In order to be treated as a worker, the person must pursue an activity which is genuine and effective, to the exclusion of activities on such a small scale as to be regarded as purely marginal or ancillary. The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the directions of another person in return for which he receives remuneration. By contrast, neither the sui generis nature of the employment relationship under national law, nor the level of productivity of the person concerned, the origin of the funds from which the remuneration is paid or the limited amount of the remuneration can have any consequence in regard to whether or not the person is a worker for the purpose of Community law."

 

103. It is therefore clear that where an EU based provision, albeit in domestic legislation, falls for interpretation, the meaning of the term "worker" has a particular definition in Community law. In paragraph 66 of Allonby v Accrington and Rossendale College [2004] ICR 1328, the ECJ stated;

 

"Accordingly, the term "worker" used in Article 141(1) EC cannot be defined by reference to the legislation of the member states but has a Community meaning. Moreover, it cannot be interpreted restrictively."

 

104. The Court went on to state;

 

"67. For the purposes that provision, he must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration -."

 

The ECJ in Allonby went on to state;

 

" 71. The form of classification of a self-employed person under national law does not exclude the possibility that a person must be classified as a worker within the meaning of Article 141(1) EC if his independence is merely notional, thereby disguising an employment relationship within the meaning of that article."

 

The ECJ was clearly recognising that the classification of an individual, for the purposes of income tax and other regimes within domestic states, may well not reflect the reality of the employment relationship for the purposes of EU law. In the present cases, the individuals were described as self-employed for income tax and national insurance purposes. The relevant contractual provisions related specifically to those areas and did not attempt to set out any wide ranging agreement that a self-employed status applied in other respects. (See also FV Kunsten above).

 

105. In Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28, the House of Lords considered a sex discrimination claim under the Sex Discrimination Act 1995 which had been brought by a woman who had been a minister in that Church. The House of Lords determined that she had been employed within the meaning of that Act. Lord Hoffmann dissented on the basis that the claimant had been the holder of an office. However he stated at paragraph 66 that if the arrangement had been contractual rather than by virtue of a particular office, it would plainly have been a contract of service. Lord Hoffmann stated at paragraph 73 that the term "worker" is a term of art in Community law which was defined by the ECJ in Lawrie-Blum. Baroness Hale stated at paragraph 141;

 

"The distinction is between those who worked for themselves and those who worked for others, regardless of the nature of the contract under which they are employed".

 

106. At paragraph 145 of Percy, Baroness Hale quoted Sir Robert Carswell in Perceval‑Price v Department of Economic Development [2000] IRLR 380.

 

"All Judges, at whatever level, share certain common characteristics. They all must enjoy independence of decision without direction from any source, which the respondent quite rightly defended as an essential part of the work. They all need some organisation of their sittings, whether it be prescribed by the President of the Industrial Tribunals or the Court Service, or more loosely arranged in a collegiate fashion between the judges of a particular court. They are all expected to work during defined times and periods, whether they be rigidly laid down or managed by the Judges themselves with a greater degree of flexibility. They are not free agents to work as and when they choose, as are self-employed persons. Their office accordingly partakes of some of the characteristics of employment -."

 

At paragraph 146, Baroness Hale stated;

 

"I have quoted those words at length because they illustrate how the essential distinction is, as Harvey says, between the employed and the self‑employed. The fact that the worker has very considerable freedom and independence in how she performs the duties of her office does not take her outside the definition. Judges are servants of the law, in the sense that the law governs all that they do and decide, just as clergy are servants of God, in the sense that God's word, as interpreted in the doctrines of their faith, governs all that they practise preach and teach. That does not mean that they cannot be "workers", or in the "employment" of those who decide how their ministry should be put to the service of the Church."

 

107. In the present cases, the claimants were under the close direction and control of the producers and directors of the respondent company. They were "not free agents to work as and when they choose, as are self-employed persons." They were directed as to how they should play the parts for which they were engaged. They had considerably less freedom and independence of thought, word and action than the freedom and independence accorded to judges and, possibly to a lesser extent, to clergy. The supervision and control under which they worked went much further than basic supervision and control in relation to times and dates of work and administrative support. Each and every action or inaction in relation to the roles which they played was subject to the control and direction of those employed by the respondent company to produce that particular production. They could not improvise at will.

 

108. In the present cases it is clear that the two individual claimants entered into individual contracts with the respondent to personally perform services for that respondent. That much is not in dispute.

 

109. In the view of the tribunal it cannot be rationally argued that, in doing so, they were operating in a self-employed manner or that they were operating a profession or business on their own behalf, whereby the respondent company had simply been a client of that profession or business. Their situation is, in reality, no different to an individual who engages a recruitment agency eg Grafton or Blue Print, to source work for them in call centres as a temporary call centre operator. During each engagement, working for various call centres, perhaps in a succession of maternity leave covers or sickness leave covers, such a person would clearly have been a "worker", if not an employee. Such a person could not be argued to have been operating a profession or a business whereby the individual call centres were clients of that profession or business. Another analogous example would be that of crop pickers who make themselves available through a gang master or an employment agency for a succession of engagements at different times of the year, in different locations, picking different crops. During each of those engagements, they are clearly "workers" for the purposes of EU law and it cannot be argued that they were individually operating a profession or a business, with the different farmers as clients.

 

110. The respondent sought to argue at the hearing that the claimants had in some way been different from other individuals in that they brought a certain degree of artistry to their work. When it had been suggested to Ms Herdman that the claimants had been given precise directions by Mr Sutcliffe in relation to the performance of their work, she stated:

 

"(that) does a disservice to actors and 'the industry' to suggest that their only role as an actor is to turn up and stand where you are told to stand, wear what you are told to wear, and read the lines that are in the script."

 

With respect to the claimants, who, it must be said, did not advance that argument, that is not correct. It cannot be uncommon that anyone, who is engaged to provide services for another in exchange for remuneration, does their best to perform their services well or that their ability to provide those services depends on their individual talent, or that it increases with experience. That is the same for May McFettridge performing in a Christmas pantomime, as it is for someone who periodically works as a temporary call centre operator or in some other area of intermittent employment. There is no particular magic, at least in legal terms, in relation to being an actor. An actor provides services for a series of employers for money, in the same way as a peripatetic teacher, a temporary call centre operator, or an itinerant crop picker. In terms of EU law, all are the same. All are workers. They work for money, otherwise than as self-employed persons operating a business or profession in an independent manner.

 

111. The tribunal therefore concludes that if the actors did not qualify as "workers" under paragraph (a), they did so in any event under paragraph (b). The actors were "workers" at the relevant times and that they were therefore entitled to be paid holiday pay and to recover unpaid holiday pay.

 

Remedy

 

112. The calculation of loss has been agreed between the parties. The remedy awarded is;

 

(i) Ms Quinn £374.68.

 

(ii) Mr McCabe £348.84.

 

 

 

113. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 14 November 2018, Belfast.

 

 

Date decision recorded in register and issued to parties:

 

See Also