MS K MACDIARMID v Qdos Pantomimes Limited and 2 others — 2022

The tribunal heard consolidated claims from 16 pantomime performers and related cast members seeking holiday pay. The issue was whether they were “limb b” workers under section 230(3) Employment Rights Act 1996 and regulation 2(1) of the Working Time Regulations 1998, notwithstanding contract wording stating that they were self-employed contractors.

It found that the written contracts were standard-form agreements created by the Respondents and, in practice, were not meaningfully negotiated. Fees were fixed or tightly controlled, claimants were paid through payroll and given payslips rather than invoicing as suppliers, and the Respondents controlled the production dates, rehearsals, scripts, costumes, choreography and “first call” availability. The tribunal also found that the claimants had little real ability to work elsewhere during the season and were integrated into the Respondents’ productions rather than operating as independent businesses supplying services to a client or customer.

Applying the purposive approach in Uber and Autoclenz, and the dependency/control analysis in Byrne Brothers and Cotswold Developments, the tribunal held that the claimants were limb b workers. It declared them to be workers for the Second Respondent, and in Mr Whitehead’s 2019 Wyvern Theatre engagement, for the Third Respondent. No holiday-pay amount was determined in this judgment; the case was adjourned for a remedy hearing if the parties could not agree the sums due.