HR Magazine – Shakespeare Festival actors incorrectly classified as volunteers

The actors were employed at the festival in 2022, where a tribunal heard they were an “integral” part of the running of the festival, were subjected to a “high degree of control” and required to work “extremely long days”. 

Employment judge Louise Brown ruled the actors Kit McGuire and Elizabeth Graham should have been classified as workers rather  than volunteers.

Peter Reeve, CEO of the Charity HR Network, told HR magazine the distinction between volunteer and worker is one the third sector often had difficulty with.

He said: “A tribunal has again highlighted the difference between volunteers and workers. It is a challenge for many organisations in the charity sector – at the heart of the decision making in these organisations are volunteers who themselves have a significant role as trustees.

“How do you in practice tell the difference when making these judgements? The definitions talk about ‘mutuality of obligation’ but in practice volunteers have the right to say no – for volunteers all effort is discretionary.”

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The tribunal found that during the festival the actors were not allowed to take up work with other organisations, as they were required to work six or seven days a week. The actors also had to work late into the night without the ability to send a substitute, which judge Brown explained was often the case with workers rather than volunteers.

There is not a clear legal distinction between worker and volunteer, explained Chris Syder, partner at Pennington Manches Cooper law firm.

Speaking to HR magazine, he said: “There is no single statutory definition of ‘volunteer’.  Typically, a genuine volunteer will have an arrangement with an employer which does not entitle them to a financial reward or benefit in kind for work they perform under the arrangement.

“If there is such an expectation, this indicates ‘worker’ status. Further, a genuine volunteer will not have to turn up to work if they do not want to and cannot be dismissed, or have payment or reward withheld if they fail to do the work. Again, if an individual has a clear obligation to attend work at set times or have payment withheld, then this indicates worker status.”

Despite working long hours, McGuire and Graham were remunerated with £50 and £150 respectively towards expenses each week. The tribunal heard the 2021 budget for the festival was over £250,000, however.

Equity, a trade union for the performing arts and entertainment industry, supported the tribunal and argued they should be “entitled to basic employment rights”. Equity has now campaigned for the festival to comply with the decision in the running of its 2024 festival. 

“Equity can reveal that Cambridge Shakespeare Festival is even now engaging performers as volunteers, rather than workers entitled to national minimum wage and employment rights,” the union said in a statement on its website (14 August). 

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Bob Cordran, partner and head of Employment at law firm Memery Crystal, said anyone who does not provide voluntary work must be paid minimum wage.

“All workers are entitled to be paid minimum wage, unless they are ‘voluntary workers’, being people working for a charity, a voluntary organisation, an associated fund-raising body or a statutory body and who are not paid (other than certain expenses) and receive no benefits (other than subsistence or accommodation),” he told HR magazine.

“Employers who are seeking to engage individuals as volunteers should tread carefully as it is easy to fall on the wrong side of the volunteer/worker boundary and so be liable to pay minimum wage. It is therefore a good idea to seek advice in all but the most clear-cut cases.”

Volunteer policies and handbooks could help HR to correctly classify volunteers, Syder added.

He said: “There is no legal obligation to provide a volunteer with a written contract when engaging them; however, best practice would be to utilise a written volunteer agreement to confirm an employer’s commitment to its volunteers and what it hopes for from them. 

“Some employers have a volunteer policy too, which provides a framework for their volunteer programme and sets out its overall principles. Employers may also choose to have a volunteer handbook with appropriate (short) policies for volunteers.”