On 9 September 2013, I gave a presentation to the Production Manager’s Association in Soho London, which was attended by representatives from many companies involved in TV and film production.
The concerns that were raised included the status of individuals engaged in the sector, whether employed or self-employed, the use of fixed term contracts to cover particular assignments, holiday pay to casual workers and interns, as well as the right to receive the National Minimum Wage. Other concerns included age discrimination in the sector, as well as the rights of TV contestants involved in talent shows who were becoming ever more vociferous and willing to assert claims where they perceived less favourable treatment .
During the session doubt was expressed about the status upon which individuals were engaged by the production companies and whether, in reality, the relationship amounted to one of employment or self-employment. In many cases there were obligations being placed upon individuals to undertake certain tasks, within tight deadlines and subject to control of the companies. Such arrangements could point towards employment.
We also analysed the status of a worker who is defined as “those working under a contract of employment or any other contract whereby the individual undertakes to perform personally any work or services for the other party to the contract … which was not a client or customer or any professional business undertaking carried on by the individual …”
It was felt that in many instances, the engagement of individuals, whilst may not amount to employment, could very well amount to the engagement of a worker and, ultimately, the associated rights that accompanied such status including the right to holiday pay and minimum wage.
There was much discussion about the use of interns and expectations placed upon such individuals and whether the engagement by the studios and production companies, in reality, amounted to enhancing the skills of those interns, or whether, due to the terms of the engagement, amounted to a retention of a worker and, accordingly, the right to receive the Minimum Wage, holiday pay and discrimination protection.
Many delegates discussed the use of fixed-term contracts and were concerned about the rights of individuals gained after a succession of contracts lasting more than 4 years. I brought to the attention of the delegates the Fixed Term Prevention of Less Favourable Treatment Regulations which came into effect in 2002 and which gave those engaged on fixed- term contracts the right not to be treated less favourably than permanent employees. Furthermore, the right to receive comparable treatment as far as pay and benefits were concerned and the risk of terminating a contract where an employee complained about any less favourable treatment and the consequents that could follow.
It was also agreed that age discrimination was prevalent in the sector and the fact that complaints were rarely raised for fear of losing employment or not being offered work in the future within the sector.
Lastly, there was an analysis of obligations on the part of TV and production companies to assess the mental fragility of contestants appearing on reality TV programmes. In addition, we also explored whether or not the holding of talent shows could amount to a recruitment process, particularly where contracts of employment and recording contracts were promised to a successful contestant and therefore the discrimination rights that would possibly protect such contestants. This was an area in which there had been a reported case involving the show “Britain’s Got Talent” and the derogatory language used towards an unsuccessful contestant who was told that she “was deluded if she thought she could sing”.
We gave practical tips on the contents of what should be included in a fixed-term contract with employees, as well as contracts with workers and interns. As far as the latter was concerned, there needed to be an emphasis on the enhancement of skills to be offered to the intern and that any perks should be minimal so as not to equate to a benefit and, if payment of expenses was offered, then receipts should be requested. The obligations on the part of the intern should not be onerous so as to avoid the consequences of the arrangement turning into one of employment or engagement of a worker.
It came clear that the relationships between studios, production managers and their “self-employed” individuals are not always properly documented, leaving it difficult to unravel and determine the exact status of the arrangement for the purposes of dealing with claims or issues raised by HMRC.
For any further information, please contact me at michael.delaney@mablaw.com or 01923 208817.
