United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CLIVE HURST (the Appellant in Person)
For the Respondent	MRS JILL MOORE (Representative)

SUMMARY

National Minimum Wage

An actor (as an agency worker) has an entitlement as worker within the National Minimum Wage Act 1998 by s34, but by s34 (2) only as against the Film/Theatre producer not the agency.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the appeal of Mr Clive Hurst, whose first appearance this is before an Employment Appeal Tribunal, although no doubt far from his first appearance in public in a speaking role. He is a long-established actor and he has brought this claim in the interests of the acting profession as a whole and at risk, as he candidly explained to us, of in some way making himself thought a troublemaker. Clearly he is far from that, and it may be that there are interesting questions which underlie the matters which he is seeking to bring before the courts which his union may well be interested in taking up and funding on his behalf on future occasions.
2. But the matter that is before us today is an appeal against a decision of an Employment Tribunal at London (Central) in relation to a claim that he made against Galloways Ltd t/a G2 as Respondent, by reference to the National Minimum Wage Act 1998. The claim was unanimously dismissed by the Employment Tribunal.
3. He has previously made a claim against a different agency which was brought before the Employment Tribunal at Stratford some 6 weeks after the decision in this case, which he has sought to appeal but which is no longer extant before the Employment Appeal Tribunal, the appeal having been dismissed, we understand it, under Rule 3, in which he raised questions relating to the entitlement of an agency to deduct commission. That issue, which was a feature of the other Employment Tribunal decision, is not in the slightest relevant to our considerations in this hearing.
4. The issue in this Employment Tribunal which is now on appeal before us, was, as set out in terms by the Employment Tribunal in paragraph 1 of its Extended Reasons, a claim that:

"…the Respondent was in breach of the National Minimum Wage Act 1998 ["the 1998 Act"] by failing to provide (or negotiate) that the hirer [a television company] should provide a fee for any audition he attended (whether successful or otherwise)."

5. The factual setting was that it appears that in respect of commercials (this is not always the case in relation to auditions for films or plays other than commercials) a person attending an audition does not get paid for his or her attendance, at any rate, at the first audition; and he was seeking to allege in the Employment Tribunal that the Agency, the Respondent, was in breach of the 1998 Act by not paying him the minimum wage in respect of work, which he asserted it was, to attend for auditions.
6. There were, therefore, plainly two issues for the Employment Tribunal to decide. First, whether the Respondent was the proper party to be sued for breach of the National Minimum Wage Act 1998 at all. Secondly, if the Agent was the proper party, whether the attendance at auditions was work for which the Applicant and others would be entitled to be paid such minimum wage. The Tribunal unanimously found against Mr Hurst, who argued the matter in person, as did the Respondent by its Director, Mrs Moore, on both issues.
7. On this appeal we have dealt solely (in circumstances to which we will refer) with the first issue. The Tribunal concluded that the Applicant was not an employee at all at common law. That appears to be plainly correct, applying any of the tests of whether someone is an employee, as opposed to an independent contractor, which have stemmed from Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 and most recently from Carmichael & Another v National Power plc [1999] 1 WLR 2042 in the House of Lords.
8. The Tribunal recorded in paragraph 5 of its Decision:

"The Applicant was not claiming to be employed by the hirer or by the agent but was a worker beholden to both agent and hirer and was obliged to sign on with particular agencies if particular work e.g. with the BBC was required."

Mr Hurst has complained about that statement saying it is incorrect because he was claiming to be employed by the agent.

9. It may be that there was an element of misunderstanding by the Tribunal. It may even be that Mr Hurst has somewhat changed his tack, as he appears to have done, by using this Tribunal hearing now as the vehicle for establishing liability on the agent, his other Tribunal hearing in relation to what is really close to his heart, namely his complaint about deduction of commissions by the agent, having in the meanwhile failed.
10. But whether or not he was claiming to be employed by the agent, it is manifest by his very bringing of the claim that he was claiming that he was a worker entitled to be paid by the agent, and that is the issue with which the Tribunal manifestly dealt in terms. It concluded in paragraph 7, as indeed in our judgment was inevitable, as we have indicated, that he was not an employee (of either of the two parties) but:

"…was self-employed, did not get paid by the hirer for auditions for TV/commercial work and that (if he had got paid) would be paid by the hirer through the agent (after the deduction of commission etc). It was also clear that the actor had a choice as to which agents he signed up with (albeit that this was to some extent dictated by the work that the actor wanted to do) and also had autonomy as to whether or not to attend an audition and if offered a particular assignment whether or not to accept it. The control that the agent had after that time was limited and, so far as the agent is concerned, was more of a supervisory role having provided a work opportunity for the actor although subsequently the actor would look to the agency for the fee and, if not paid or delayed (more likely), would look to the agency to push the hirer for payment."

11. It is, in our judgment, unarguable but that such conclusion was right, and nothing has been put forward by Mr Hurst which could cause us to conclude that there was any error of law in the conclusion that Mr Hurst, like other actors who are agency workers in such a situation, is neither an employee of the agency nor of the producer or hirer.
12. However, the National Minimum Wage Act 1998 does provide for an agency worker in such a situation, so that he or she is not left without remedy under the minimum wage legislation. The problem for Mr Hurst is that section 34 of the 1998 Act, which is the relevant section, dictates which of the two parties, namely the agency or the hirer in a given case, is to be the target of any complaint of failure to pay the minimum wage. Section 34 reads as follows:

"(1) This section applies in any case where an individual ("the agency worker") –

(a) is supplied by a person ("the agent") to do work for another ("the principal") under a contract or other arrangements made between the agent and the principal; but

(b) is not, as respects that work, a worker, because of the absence of a worker's contract between the individual and the agent or the principal; and

(c) …"

13. Mr Hurst is plainly only not a worker because of the absence of a worker's contract between him and the agency or the television producer. He is thus ripe for coverage by section 34 (2) of the Act which reads as follows:

"(2) In a case where this section applies, the other provisions of this Act shall have effect as if there were a worker's contract for the doing of the work by the agency worker made between the agency worker and -

(a) whichever of the agent and the principal is responsible for paying the agency worker in respect of the work; or

(b) if neither the agent nor the principal is so responsible, whichever of them pays the agency worker in respect of the work."

14. It is plain that on the facts of this case, as found by the Tribunal, the principal was responsible for paying the agency worker in respect of the work. This was the finding of the Employment Tribunal and it is not seriously or at all contended to the contrary, and certainly has not been today by Mr Hurst; and we have had the opportunity of seeing the document described as a commission note, dated 3 December 1994, signed by Mr Hurst with this particular agency, which prescribes how payment is to be made. It is to be made by the producer, described in that document as the employer, and it is either paid through the agent, in which case the agent is then entitled under the first part of the document to certain commissions by way of deduction, or, if it is paid direct by the producer to Mr Hurst, he must then account to the agency for their commissions and dues.
15. In those circumstances, applying section 34 (2) (a) of the Act, insofar as Mr Hurst has a complaint of non-payment of the national minimum wage, it can only be directed against the television company, or producer, or employer in the wider sense, who wishes his services to be provided on a commercial, film or play and not as against the agency, as the Tribunal found. There is no error of law in the Tribunal's decision in this regard.
16. This may or may not cause difficulty for Mr Hurst in relation to the complaint which he is not making in these proceedings, namely as to the fact that from that national minimum wage the agency is, if it is, entitled to deduct such sums as means that there will therefore be in his hands a sum which may be less than the national minimum wage, after deductions. That, however, is, as we have indicated, not a matter that is being complained of in this case and would need to be complained of, if at all, in some other court and involving some other party.
17. In these proceedings Mr Hurst is only complaining about the failure to be paid for auditions. Given the finding that we have made, that if he has a complaint that he should have been paid for auditions, on the basis that auditions are work for which the national minimum wage ought to be paid, then he cannot pursue it in these proceedings without having succeeded on the first issue, and he has failed on the first issue.
18. He has invited us not to deal with his appeal against the findings on the second issue by the Tribunal below to the contrary and we agree not to do so. Any views we were to express, indeed any findings we were to make, would be binding as between this Applicant and this Respondent, and the Applicant has already failed against this Respondent, but might still lead to conclusions which might be binding in other cases on an Employment Tribunal. As this case would not have been argued by lawyers on either side, such would appear to us to be an inappropriate course to have taken in any event in respect of an issue which may (we say no more than that) have some substance.
19. Clearly if Mr Hurst wishes to take the point in relation to an entitlement of an actor to be paid for auditions and commercials, insofar as it amounted to a complaint of breach of the National Minimum Wage Act 1998, it would have to be brought against a producer, and it may be that in such circumstance, Equity on the one hand and a Trade Association on behalf of the producer on the other, may be interested in respectively funding legal advice and proper legal representation so that that matter can be fully argued in another place without having been in any way prejudged by this Appeal Tribunal. But that is for another day.
20. In relation to the appeal by Mr Hurst against a decision of the Employment Tribunal that he was not entitled to complain on breach of the National Minimum Wage Act 1998 by this Respondent, his appeal must be dismissed.