ESM4122 - Particular occupations: entertainment industry - theatrical performers/artists - additional considerations in the media and performing arts sector - actors and other performers

Hall –v- Lorimer 1994 STC23

Mr Lorimer was a freelance vision mixer. In a typical year had around 120-150 contracts, for 20-22 clients. The longest contract being for 10 days. Mr Lorimer had to maintain a business structure to win these contracts. In particular he maintained an office and a booking system. He bore considerable financial risk and had significant autonomy. The Court of Appeal found that Mr Lorimer was self-employed. ESM7160

McCowen and West 1994 (Special Commissioners)

Mr McCowen and Mr West were actors, each engaged to perform specific roles in a number of plays for the duration of their run. Mr McCowen and Mr West also had a variety of other engagements in different media (film, television, radio, and theatre). Some of these ran consecutively and some ran concurrently. Each actor had their own business organisation, employing an agent and incurring expenditure associated with winning work and maintaining a business structure. Neither actor could be seen as becoming part and parcel of the theatre as an employee of a box office might be and neither actor was under a sufficient level of control by the theatre or management company to create an employment relationship. Each role was interpreted by the actor as a matter of artistic expression and that expression was the service performed. ESM4121 It was not controlled in the delivery by the theatre or theatre company that had engaged them.

The Special Commissioners held that they should be seen as in business on their own account for tax purposes and that they were consequently self-employed.

The full text of the findings of the commissioners in this case.

Fall – v- Hitchen1973 STC66

Mr Hitchen was a professional dancer, engaged by a ballet company to perform in its productions. He was engaged on a full-time basis, with a regular salary. He had a permanent contract, with a minimum notice period and a guarantee of at least 22 weeks work. The High Court concluded he was an employee. ESM7055

Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance [1968] 2 QB 497

This case considered what was meant by a contract of service and MacKenna J. formulated it as follows:

“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.”

When considering the media and performing arts sector MacKenna J’s third test takes on greater relevance. Performers provide their own services, but that performance is much more collaborative than the perceived master / servant relationship. It is therefore important to consider closely the other factors which may, or may not, be consistent with a contract of service. These other factors can include, but not be limited to financial risk, being in business on one’s own account or the question of how integrated the performer is into the workplace e.g. the permanent members of a ballet company as opposed to an actor engaged in a specific role for a specific show. Consideration should therefore be given to these other factors in determining employment status and in such cases the right of control may not necessarily be the determinative factor. ESM7030