Ms S Campbell v Dr D Crilly and Ms J Burns T/a Cambridge Shakespeare Festival: 3311681/2024 and 3311682/2024
EMPLOYMENT TRIBUNALS
Case No 3311681/2024, 3311682/2024
Between
Ms S CampbellClaimantDr D Crilly and Ms J Burns T/a Cambridge Shakespeare FestivalRespondent
Before
Employment Judge M HuntMs C. Page for claimantDr D. Crilly for respondentDate 24 November 2025
JUDGMENT
[1]The Claimant was not a worker for the purposes of the Employment Rights Act 1996, accordingly her claims are dismissed.
REASONS
[2]The Claimant has presented several complaints to the Tribunal, all of which depend on her being considered a “worker” in accordance with the definition in section 230 of the Employment Rights Act 1996.[3]The context is that the Claimant is an actor who performed at the Cambridge Shakespeare Festival (the “Festival”) in 2024. The Respondents are the organisers of the Festival. The Claimant was not paid. She believes she qualifies as a “worker” and should have been paid. The Respondents disagree, believing that her participation was entirely voluntary.[4]In reaching my decision I had regard to a 151-page file of documents, together with statements from the Claimant, Dr Crilly (whose written statement was only provided on the day of the hearing) and three of the latter’s associates. Dr Crilly did not appreciate his witness statement should have been provided in advance of the hearing, but I was satisfied it caused the Claimant no prejudice to allow him to rely on it. The Claimant knew the Respondents’ case and had the opportunity to consider the statement with her representative prior to asking questions of Dr Crilly. He asked some questions of the Claimant. None of the other witnesses needed to be “called”. In truth, no significant facts were in dispute. If any were, it was not relevant to my determination and I needn’t dwell on them. The case is about how the facts should be analysed in law. I am grateful to all of the witnesses, including those that did not appear before the Tribunal, for their input. I am also grateful to Dr Crilly and the Claimant’s representative for their helpful written summaries of their positions and engagement with my questions.[5]Although I will address relevant case law later, I should point out at this early stage that I was provided with a file containing several reports of previous cases. The parties agreed that the most directly relevant of them did not “bind” me. They were a decision of the Employment Tribunal and a refusal of permission to appeal that decision. Nevertheless, the decisions were extremely relevant as the issue that was decided was, essentially, identical to the one before me. The prior claims involved different actors in the same Festival, albeit a previous iteration of it (the one that took place in 2022). The Tribunal concluded the claimant actors were to be considered “workers” in those cases. Although there are no doubt some factual differences between those claims and the one before me, they do not seem to me significant. Much of the reason given by the Claimant for presenting her claim was based on the principle that the Respondents should have followed that previous decision. From my perspective, consistency in judicial decision-making is an important consideration, especially when deciding what are ultimately almost identical issues (certainly where the Tribunal is aware of that previous decision). However, I find there is good reason to depart from it. As it is not “binding”, it is therefore appropriate for me to do so. I will of course endeavour to explain my reasons and will seek to do so with reference to the previous decision where appropriate.
Facts
[6]As indicated above, no significant facts were in dispute. Indeed, I don’t understand there to be any significant difference to the facts as found by the previous Tribunal. It is helpful to provide a broad historical perspective of the Festival first. That was not the subject of the proceedings, so I apologise for any inaccuracies in doing so (none of which are intended or material).[7]The Festival has been running annually for several decades. I understood it was first held in 1988, over a 2-week period in the summer. It was arranged by Dr Crilly (no doubt together with a number of like-minded Shakespeare aficionados). It was originally staged with a loan of £250. Members of the public purchase tickets to attend the performances. The Festival’s core purpose was, and remains, to offer outdoor summer productions of Shakespeare plays to the people of Cambridge and visitors to the area, in the pleasant grounds of various Cambridge University colleges.[8]The Festival has evolved over the years and grown in scale. It is now held over 2 months, offering 6 different Shakespeare plays every year. I have no doubt it has been a near life-long “labour of love” of Dr Crilly’s and his associates (including notably Dr Bell and Mr Rowan, with whom he has collaborated for over 30 years). No doubt a continuing passion for Shakespeare has led them to continue to undertake such a significant venture every year. This was not lost on the Claimant, who it was clear to me did not wish to criticise or detract from any of their endeavours.[9]The Festival’s “budget” is now close to £250,000, of which over £120,000 is spent on actor accommodation. The “budget” is provided or underwritten by the Respondents. They hope that that the costs of staging the Festival will be covered by ticket sales, although Dr Crilly said that often isn’t the case. Conversely, the Festival can be profitable some years, but I was told by Dr Crilly that that is not its purpose. He likes to be able to pay his associates something to recognise their significant contributions (although he says it is far from representing the work they put in). Any surplus, he says, is kept for the following year(s) in case of any future funding shortfall. Being an outdoor event, it is at the mercy of the British summer weather that can be temperamental. I was told of one year – 2007 – that was allegedly “the wettest on record”. Dr Crilly stated that he had tried to address the Festival’s “deficit” that year by putting a personal redundancy award of around £53,000 towards it (which he appreciated would never be recovered), but that even that sum was insufficient.[10]Dr Crilly said that the purpose of the Festival is not lucrative. He has not “formally” set up any charity or other form of “not-for-profit" structure to run it. It doesn’t seem to have any formal status at all (although I did not investigate the precise arrangements in great depth, noting simply that Ms Burns has appeared as a Respondent to these proceedings when she was not in the previous Tribunal case). It is simply “him” (alongside Ms Burns), with little real departure, as far as its organisation is concerned, from its more modest beginnings. Dr Crilly said that the Festival’s purpose is predominantly educational and charitable. For instance, around the Festival, he gives free talks and hosts free workshops at local schools. Not only does he give up his time, but also dedicates certain performances to charity, saying that he has raised over £130,000 over the years for a local children’s hospice. In response to a question about why he does not increase ticket prices (for instance to pay the Festival actors), he said that he wished the Festival to remain accessible to the broadest range of people across Cambridge, so that they all have the chance to see Shakespeare plays being performed outdoors, live, in the elegant surroundings of college grounds. There was no reason for me to doubt any of what Dr Crilly said, so I accepted it.[11]Thus far, little is of great relevance to the matter for me to decide. Nevertheless, I felt it fair to record Dr Crilly’s very significant commitment to the organisation of the Festival over many years, which has come at significant financial cost to him. No doubt the time spent on it over the years has been even more considerable. In light of the Festival’s success, it would appear that his endeavours have been greatly appreciated by a very large number of people.[12]Of more direct significance to this case is the practical arrangements around the organisation of the 2024 Festival. Specifically, the participation of its actors, without whom it would clearly not be able to proceed.[13]Dr Crilly and his associates work out a plan for the Festival, including the plays to be performed. They then hold auditions for “parts”. The Claimant had auditioned previously (unsuccessfully) but was invited back to audition for 2024. The email to her included a generic invitation, given to all people auditioning, that reads as follows. “The Festival Artistic Director (David Crilly) has looked through your CV and showreel and we would like to invite you to audition for the Cambridge Shakespeare Festival 2024, but would first like to tell you more about the Company and the way we work. We are currently preparing for our thirty-seventh season, involving six open-air productions taking place in the beautiful gardens of the Cambridge University colleges. The Festival is a high-profile event, hopefully attracting appreciative audiences from all over the world and also attracting media attention. Perhaps the most important thing to explain initially is the Company's financial basis, since we are unable to offer any financial incentive to Company members. Over the last thirty-six years the Company has received no funding or sponsorship whatsoever and has been supported entirely by the personal financial input of the Company's Artistic Director, Dr David Crilly, who underwrites all productions. In 2023, we staged six productions (each lasting between three and four weeks) over the summer period. The total budget for the Festival was well in excess of £250,000, and as all the productions were in the open air you will appreciate the high-risk factor involved (the last few years have certainly taught us how fragile endeavours of this sort can be). That said, the money set aside for the cast is by far the largest single element in the Festival budget, since the accommodation costs alone are normally well in excess of £120,000. In a place like Cambridge, accommodation over the summer is both scarce and very expensive, so after we’ve paid the accommodation costs it doesn’t leave much in the budget for the other productions costs. So… we are able to supply and pay for accommodation for all cast members during the rehearsal and performance period. (All Company members will be staying in student rooms at Lucy Cavendish College. Rehearsals take place in the open air in the College grounds and begin on 24th June). Beyond that, I’m afraid we are only able to make a 'token gesture' contribution of just £50 per week towards expenses. We would like the situation to be different, of course, but the simple fact is that it isn't. In one year alone the Company lost around £45,000 because of the weather! It’s an important point to make that the appalling financial aspect of involvement in the Festival applies to everyone – we’re not asking you to work ‘on the cheap’ so someone else can make money – the Artistic Director regularly loses thousands of pounds to support the event. We want it to be profitable, and it sometimes is… but often it isn’t. But we believe the Festival is worth doing, nevertheless. The reason we’re keen to hammer home this point is that very occasionally (about once a year) we receive replies to invitations along the lines of “how dare you expect me to work for nothing...” Well, we don’t! The Shakespeare Festival is a labour of love for everyone involved. We’re asking if the Festival is something that you’d like to be involved in on a purely unpaid and voluntary basis. It’s very much a worthwhile artistic collaboration rather than a ’job’ in the traditional sense. We provide pretty good accommodation in a beautiful city and present plays in spectacular settings to a normally appreciative audience. That’s our purpose. If it sounds like something you’d like to spend your summer doing then we’ll see you at the auditions. Although there is undoubtedly a lot to do for little financial return, the Festival is hugely rewarding in other ways (which is why it exists). The profile of the Festival has grown enormously in recent years and attracts a good deal of media attention (in 2009 the Festival was listed FOURTH in the Independent on Sunday's list of the 'Top 50 UK Arts Festivals'). The productions themselves are performed in the magnificent and beautiful settings of the University College Gardens. There could be no better place to perform these works. Each cast, of about 10 actors, will prepare two productions. Each production will run for between three and four weeks, and because of the obvious need for doubling everyone will have plenty to do in terms of performance. It is also a Company policy, as far as possible, to ensure that if you’re offered a high-profile role in one production then your profile will be less great in the other, which could mean, for example, two supporting roles. That way we ensure that everyone has something significant to look forward to and also ensures that we have a consistently high standard throughout the Company. The plays this year are: Antony and Cleopatra Love’s Labour’s Lost Hamlet A Midsummer Night’s Dream Richard II The Merry Wives of Windsor The nature of this event is such that it’s essential we get the right team together. Apart from the obvious appeal of tackling major Shakespearean roles over a prolonged period in a beautiful and spectacular setting, the Festival is invariably great fun, and in many ways is regarded by the Company as much as a social event as an artistic one. We do all the things you might expect people to do in Cambridge over the summer, and punting parties on the river are not out of the question! The Festival runs throughout July and August and you would be involved between 24th June and 27th August. Despite the financially discouraging outline of the Festival given above I hope you will still be interested in taking part”.[14]The Claimant accepted the invitation and attended an audition. Dr Crilly said that the financial position as outlined above was repeated at the audition. I accept it was; Dr Crilly and his associates would have been acutely aware of the issue due to the previous Tribunal proceedings. The Claimant was offered parts, as follows. “As regards the 2024 Cambridge Shakespeare Festival, we'd like to offer you the following parts:• In the first half: Gertrude, in Hamlet• And in the second half: Duchess of Gloucester/Gardener/Ross, in Richard II Please find attached the cut script for Richard II. Rehearsals are in Cambridge and begin on the 24th June, and your last night being 24th August. Please note, the tech/dress for the first play is on Sunday 7th July, and for the second, Sunday 28th July. There are two Saturday charity matinees, and these dates will be released nearer the time. I’m sure you are aware of the financial deal, but just to reiterate, it’s £50/week - it is of course not a wage, but it's something towards your expenses. Accommodation – including the rehearsal period – is free. If you are able to stay at friends' or family for the duration, let me know and you will receive an additional accommodation allowance”.[15]As this email shows, the plays run consecutively. The rehearsals for the first play take place in advance of that starting. Rehearsals for the second are arranged around the performances of the first play. I was told that this is known as performing “in rep”, which was new to the Claimant and something she was keen to experience. As can readily be imagined, the first half of the Festival is therefore particularly intensive. By the second half, the actors’ focus is purely on the performances of the second plays, so less demanding.[16]The parties agreed that the rehearsal schedule was arranged by Dr Crilly and/or his associates. The Claimant was expected to adhere (alongside the other actors). She was expected to have learnt her lines in advance of the Festival (as were the other actors). The timings of performances were set by Dr Crilly and/or his associates. The Claimant was expected to attend each one, absent good reason (like her fellow actors). After the performances, the Claimant (alongside the other actors) was expected to participate in the “strike”, which is essentially taking down the stage equipment and spectator seating and putting it all into safe storage until the next performance. No doubt an element of general “tidying up” was involved also. Outside the performances and rehearsals themselves, the Claimant was expected to raise awareness of the Festival by “leafletting” in Cambridge city centre (again, alongside her fellow actors).[17]The combined effect of all this is that participating in the Festival involves a lot of effort and commitment over a significant period of time. Dr Crilly recognised this and said that he liked to organise some social activities around these commitments, such as punting trips, picnics, cocktail events, etc at his expense.[18]Although there is an expectation of participation in all these activities, Dr Crilly was keen to stress that little can be done about those who refuse to participate in all of them. The Claimant herself, due principally to undertaking temporary work as a solicitor during the Festival, often did not undertake leafletting or attend rehearsals at the scheduled times. Dr Crilly said that some of the initial rehearsals had to be cancelled as the actors (including the Claimant) were not sufficiently familiar with their lines. They were not subjected to any sanction. Other rehearsals were rescheduled depending on actor availability. Had the Claimant decided to leave the Festival at any point, she was free to do so. Dr Crilly said that it had happened in the past, was evidently frustrating, but entirely understandable if it was to undertake paid work elsewhere. He made alternative arrangements to keep the performances running. I understood that he had once had to ask someone to leave the Festival. However, it was very rare and it was far more common for actors to return year-after-year. Dr Crilly mentioned some who had been performing with the Festival for over 16 years.[19]It was also agreed that, although not financially rewarding, the Festival is rewarding in other ways. Each participant no doubt experiences that in different ways. Some might simply enjoy acting in celebrated plays in pleasant outdoor surroundings before interested members of the public. Others might see it as much as an opportunity to acquire valuable acting experience and/or to “get noticed” by others who might wish to engage them in future productions. Those who regularly attend no doubt appreciate the social element it involves.[20]As to financial aspects, the Respondents respected the agreement outlined in their invitation to audition. They accommodated actors free of charge in University Colleges; they paid each one £50 a week as a contribution towards expenses. The £50 a week was described by the Claimant at the hearing as a “gesture of goodwill”.[21]As I understand it, the Festival took place as planned.
Relevant law
[22]Section 230 of the Employment Rights Act 1996 is as follows. 230 Employees, workers, etc(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly.[23]I was referred to numerous authorities considering how to determine whether any individual is a “worker” for the purposes of this section. Although all interesting and insightful, most I considered to be largely irrelevant to this case.[24]This is because none of those authorities appears to directly consider the definition of “work” or “services” for the purposes of section 230 of the Employment Rights Act 1996. In order to be a “worker” a person must have entered into, or worked under, a contract to “do or perform personally any work or services for another party”. Upon asking the Claimant’s counsel about the matter, she was unaware of any case law defining the concept of “work” or “services”.[25]I initially considered that surprising and suspect that there must be. As I wasn’t referred to any, I did not investigate further. In reality, I suppose it is rarely in issue. In the vast majority of claims concerning employment or service relationships it will go without saying that some form of work or service is being provided to somebody. For instance, when determining whether a purportedly self-employed individual should in fact be considered a “worker”, there is no dispute that the person is doing “work” or “providing services”. The main claims where the definition of “work” or “services” might be in issue are those concerning volunteers. There may well not be huge numbers of such cases, not least because many volunteers wouldn’t obviously have any great reason to bring claims that depend on the existence of a purported employment relationship.[26]In relation to volunteers, I was provided with two authorities that address whether they are to be considered “workers” (and, if so, in what circumstances). I found these most relevant to my determination of this claim due to the fact the Claimant was not expecting to be paid for her performances at the Festival so could aptly be described as a “volunteer”. It appears that those volunteers that do bring claims appear to do so mostly when they make allegations to have suffered discrimination (in relation to which a similar definition of “worker” applies, which must be satisfied to successfully bring such claims to the Tribunal). Both authorities are relatively recent, one of which I understand may be subject to an appeal – Groom v Maritime and Coastguard Agency [2024] EAT 71. The judgment in that case refers to a history of claims involving various branches of the Citizen’s Advice Bureau (“CAB”). I only reviewed them to the extent recorded in the judgment. There is no reason to delay my judgment to await the outcome of any appeal as I don’t find that the case is of direct application to the present facts, although it is worth mentioning.[27]From the reports of these two cases (and the summaries they contain of previous decisions), the “volunteer” cases all appear to revolve mostly around whether a contract existed between the parties. Usually that is combined with the caveat that it must be a contract for “work” or “services”. Some cases explain that other forms of contact may exist, for instance, what is described as an “if” contract. In the present case, that would mean “if” the actor attends the Festival, they would be accommodated free of charge and be given a £50 weekly contribution to their living expenses. It would be “turning up” that results in the accommodation and expenses being provided, not the provision of acting services themselves (at least, that is the way I have understood the matter).[28]Those “volunteer” claims that have failed have tended to do so because the Tribunal has lawfully concluded that no contract existed at all, because there was no obligation for the volunteer to actually do anything. If a claim succeeds, it might be remitted precisely because it is unclear whether the Tribunal found that a contract existed – Catt v English Table Tennis Association Limited and Others [2022] EAT 125.[29]None of the cases obviously discuss the definition of “work” or “services”. I will refer to them together only as “work” from now on for simplicity. As any contract must be one for “work” if it is to result in a “worker” relationship, it seems to me sensible by analysing what that means. Doing so would be only to follow the statutory language in context (as the authorities invariably encourage). If whatever the parties agree is not a contract to provide such “work” or “services”, then whether or not some form of contract might exist between the parties, and if so what its precise nature might be, is irrelevant for the purposes of Tribunal proceedings determining “worker status”.[30]It is possible that the facts of previous “volunteer” cases have never required the Tribunal to consider the definition of “work”. They could all apparently have been decided on the application of traditional contract law principles, irrespective of whether the agreement was for “work” or not. Or perhaps they simply proceeded on the assumption that a volunteer undertakes “work”. However, the present case seems to me to present a set of facts where the analysis of what defines “work” is essential. Whereas, for instance, the relevant agreements in the CAB cases do not appear to have required the volunteers to actually undertake any activity for the CAB, that is a very different situation to the present. It is difficult to envisage how the Claimant, who commits to performing at the Festival (including physically travelling to stay in Cambridge for 2 months) could be considered as not being “obliged” to participate. Hence, the nature of the previous Tribunal decision finding that Festival actors should be considered “workers”. The facts of this case are also different to those of both Groom and Catt, where an element of remuneration appears to have been foreseen in the parties’ agreement, which I find to be crucial as I will now explain.[31]The concept of “work” is well-understood in an everyday context. An existential component of it is remuneration (the “wage/work bargain” as it is sometimes referred to). A child that asks their parent why they can’t pick them up from school might be told “because I’m at work”. What the parent means by that is that they are performing some activity to earn money. If there is no expectation of earning money (or equivalent valuable consideration), whatever the parent might be doing, it is not “work” (so far as section 230 of the Employment Rights Act 1996 is concerned). I do not think this is a controversial conclusion, bearing in mind the purpose of employment law is to provide minimum rights for those who “work” for somebody else. I don’t exclude that there may be exceptional cases where the absence of an expectation of remuneration might not be decisive to the definition of “work”, notably cases of “modern slavery”. However, I heard nothing about that and proper consideration of it should be reserved to instances where it might be relevant. That said, the analysis would still hold good in my view on the basis that the relationship would plainly be predicated on coercion, sufficient to establish that the people involved would never have genuinely considered the activities to be unpaid or “voluntary”. Accordingly, in law, an expectation of remuneration would exist regardless. The case before me, as in most if not all genuine “volunteer” arrangements, is wholly removed from that sort of situation. Volunteers fundamentally agree to commit to an activity with no expectation of financial reward in return. If they do so, they are not undertaking “work” or “providing services”, whether or not any agreement about their activity amounts to a contract.[32]This is not to underestimate the exertion and commitment that volunteers put into their activities. They may well consider it “work” in practical terms. As this case amply demonstrates, it will often be very difficult to establish any practical difference between someone’s voluntary and professional activities. An actor performing for free may well put in just as much (possibly more) effort into that than into performances they get paid for. Many barristers working pro bono (for free) might do likewise. A judge that sits for free as a Chairman in the Valuation Tribunal for England performs similar functions to any fee-paid appointment they might hold. They would perform the role just as diligently. A taxi driver or chauffeur that also volunteers as a community minibus driver may well do more in the latter, voluntary, role because it might require them to help those who are particularly vulnerable or have restricted mobility. No-one, certainly not me, is suggesting that volunteering does not involve “work” in the sense of effort. The effort involved is often very considerable. But it should not be classified as “work” for the specific purposes of employment law.[33]As to the requisite “remuneration” at the heart of this concept of “work”, this would mean reward of some kind including an element of profit to the “worker” – income. This is clearly the key component to the “wage/work bargain”. The term does not extend to “expenses”. Any “worker” who works away from home might well be afforded accommodation and a subsistence allowance. They would not consider it “income” (neither does His Majesty’s Revenue and Customs). The Employment Rights Act 1996 itself provides a clear distinction between “wages” and “expenses” in section 27. “Expenses” are destined to cover the immediate and necessary financial expenditure to enable an activity to be done (such as food, transport and shelter). “Expenses” (assuming they are genuinely just that) cannot properly be considered income or remuneration. Just because someone is not a “worker” earning wages does not mean that expenses that they receive should then instead be considered some form of wage.[34]As I have said, this analysis of the definition of “work” does not seem to be a position directly encapsulated by the authorities I was referred to, but it is consistent with them. If it does not strictly follow the approach in previous cases, in my view it is a rather more straightforward route to assessing the “worker” status of volunteers. In Groom, it is notable that the element of remuneration is what led the EAT to disagree with the Tribunal’s finding that Mr Groom was not a “worker”. At paragraph 110, it was recorded as follows. “In my judgment, the only proper construction of the documents is that a contract comes into existence when a CRO attends an activity in respect of which there is a right to remuneration. Further, that contract is for the provision of services, not a collateral contract for the reimbursement of expenses incurred”.[35]The outcome of my analysis is ultimately the same. As there was an expectation of remuneration, Mr Groom’s contract could be described as one for “work” for the purposes of the Employment Rights Act 1996. That there was such remuneration led the EAT to conclude that there was a contract between the parties, but this is a case in point where the meaning of “work” (“the provision of services”) is not dwelt upon.[36]I appreciate that there is no specific status (or perhaps definition) of “volunteer” in employment law, as highlighted in Groom. The parties also did not seem keen on using the phrase. Dr Crilly preferred to talk of the parties’ “collaboration”, for instance. I use the term “volunteer” simply as shorthand to denote those who undertake activity with no expectation of financial reward.
Conclusions
[37]It seems to me there are two related ways of analysing whether the Claimant should be considered a “worker” in accordance with section 230 of the Employment Rights Act 1996. They both depend on the definition of “work” or “services” for the purposes of that Act.[38]Firstly, the definition of “worker” requires there not only to be a contract, but one specifically for “work” or “services”. The parties’ agreement was recorded in the invitation to audition. The Claimant’s participation in the Festival was expressly “unpaid and voluntary”. Both parties could not have been clearer about that. As there was no expectation of remuneration, whatever contract might have existed between the parties, it was not one for “work” or “services” as defined for the purposes of section 230 of the Employment Rights Act 1996. The provision of temporary accommodation is not “remuneration”, neither is a contribution to living expenses of £50 per week. In relation to the provision of accommodation, no money actually exchanged hands, but neither arrangement amounted to anything more than “expenses”, as expressly agreed between the parties. The Claimant herself recognised the £50 weekly contribution was a “gesture of goodwill”. I had no hesitation in accepting that it was clearly and genuinely as described: a “contribution” towards living expenses and no more. Nobody at the hearing suggested that this sum would come close to meeting, let alone exceeding, the reasonable subsistence expenses of someone performing at the Festival. Dr Crilly called it no more than “beer money”.[39]As explained above, this is not to underestimate the exertion and commitment that the Claimant put into her performances (and ancillary activities). Many may well treat what she (and her fellow actors) did as very hard work. It will not always have been fun. It will have been demanding. There may have been moments where she might have questioned how much she was doing and whether it was “worth it”. She might have disagreed with Dr Crilly and/or his associates about various matters, whether timetabling, artistic direction or something else and found that frustrating. Many of these considerations may well exist in any employment or “worker” relationship, but they also exist in the context of “voluntary” activity.[40]It is on the basis of this analysis that I disagree with the previous Tribunal decision, and ultimately only on this point. I need not therefore repeat the clear analysis from that decision. If it is not on the basis of the fundamental consideration of anticipated financial reward, there would be very little in my view that could objectively differentiate an amateur (or “volunteer”) actor from a paid actor. Or any volunteer from somebody performing similar activity for financial reward. To highlight the point, any actor in an amateur dramatic production might be expected to audition for roles to work out what part they might be best suited to. They would be expected to follow the guidance of the director. They would likely help with the “strike” after each performance. They may well be expected to undertake some form of promotion to ensure they have an audience before whom to play. The bigger the scale of the event, the greater the production costs (for instance hall rental), the greater the expectation to assist with “marketing” the show. They would clearly be expected to learn their lines and be present at every performance. All of this represents the very nature of the commitment they make to the amateur dramatics society they are part of and their fellow cast members. All of this represents the commitment the Claimant made also to the Festival and her fellow actors. The extent of what she committed to do and under whose control she did it is not, in my view, a principled basis for finding that the Claimant should be considered a “worker” rather than a “volunteer”. This is because a volunteer may well undertake effectively the same, or greater, duties than any equivalent paid individual in any given scenario and may well do so under considerable direction. In my view, the only principled distinction is as to the expectation of remuneration.[41]If I’m wrong to find that the definition of “work” or “services” for the purposes of the Employment Rights Act 1996 necessarily depends on the expectation of remuneration, an alternative analysis reaches the same outcome, for very similar reasons. This results from the application of traditional principles about the formation of contracts. In this respect, the only matter on which I differ from the previous Tribunal decision is that I do not find, as a fact, that the parties had any intention of creating legal relations amounting to a contract for “work” or “services”, such as would lead to the Claimant being considered a “worker”. They may well have entered into some form of contract (perhaps an “if” contract as referred to above), but for it to amount to one for “work” or “services”, the parties must have anticipated remuneration – a wage. That was clearly not the case. Put another way, no matter how many other considerations apply that might indicate the potential existence of a contract for “work” or “services”, by far the weightiest is the expectation of remuneration. Absent that, I conclude that the parties’ agreement was not one for “work” or “services”.[42]There is little to add to the previous Tribunal decision about any other factor that might suggest otherwise. Some form of agreement existed between the parties: the Respondents clearly made an offer to the Claimant to perform at the Festival. She accepted. By way of consideration, she offered to perform. In return, the Respondents provided her with a script, direction, a stage, costume, accommodation and expenses. There is no reason to believe either party did not intend to make a binding commitment to each other, sufficient to amount to an intention to create legal relations, to this limited extent.[43]As to whether such agreement was for “work” or “services”, the Respondents and their associates clearly exercised a degree of control over the Claimant by way of artistic direction. They expected her to participate in rehearsals, performances, the strike and leafletting. Her part could have been withdrawn from her had she failed to do so (although most likely only in the event she were to prove wholly unreliable in attending rehearsals or performances). She was expected to perform “personally” as that is the very nature of any actor’s commitment. She was part of a relatively organised grouping of individuals, of whom the Respondents were the most “powerful”, in the sense that they were the ones in charge of the Festival income and expenditure, ticket pricing, etc.[44]I readily accept that all of these factors could point to a “worker” relationship. The Claimant raised others too, although accepting none were determinative. She highlighted the time spent at the Festival (essentially two months). She also noted the “budget” of the Festival of around £250,000. The time spent at the Festival was considerable. The Festival raised a lot of money via ticket sales and could be viewed in that sense as a form of “professional” undertaking.[45]But in relation to all of these factors, there is nothing that necessarily distinguishes the situation from a volunteer arrangement. Volunteers can be part of very organised and hierarchical structures. They would be expected to follow guidance or direction, short of which they might be informed their participation is no longer welcome. They are expected to follow through on their commitments and often to be flexible about what exactly they do. It might well involve elements of work they don’t particularly want to do. Suffice to refer to the scouting association, whereby volunteer leaders on a particularly cold and wet weekend camp, would have no end of cleaning up to do, in sometimes fairly summary conditions (pots and pans, toilets, tents, etc). Of course, they would expect assistance from other people, but everyone “mucks in”. Someone has to strike the camp and tidy the equipment. Being said leader would be an (at least) weekly commitment, often spanning years or decades. They will have swathes of policies to adhere to, not least related to the safeguarding of children. People volunteer their time and skills across a huge array of sectors, including for organisations as large as the NHS, without necessarily being considered “workers”.[46]Therefore, the only truly weighty consideration to whether the parties entered into a “worker” arrangement is remuneration. None of the others, even cumulatively, come close to outweighing it. Although the Claimant urged me to put some weight on the relative “bargaining positions” of the parties, in this case it’s not a considerable factor (in comparison, for instance, to a case involving modern slavery where coercion may be a very significant issue). The Claimant was a solicitor with access to alternative paid employment. Indeed, she continued that activity during the Festival. She was neither expecting remuneration from the Respondents, nor in any sense reliant upon them. She was entirely free to choose not to participate.[47]It is especially difficult in this case to consider how any of these factors, apart from the expectation of remuneration, can lead to a principled conclusion regarding “worker” status. That is because of the history and chronology of the Festival. At what point in its evolution would these factors suggest that, what started out as undoubtedly “voluntary” participation in 1988, had morphed into amounting to a “work” or “service” relationship?[48]Therefore, whichever way one analyses the situation, either from a straightforward interpretation of section 230 of the Employment Rights Act 1996 in context, or from a more detailed assessment of the parties’ contractual intentions, I determined that the Claimant should not be considered a “worker”. The Claimant accepted at the hearing that all of her complaints depended on her being considered a “worker”, so the entirety of her claim fell to be dismissed. Approved by