The new ‘day one’ dismissal rights in the Employment Rights Bill will allow actors to claim unfair dismissal from the first day of employment, rather than the current two-year period. Partner Howard Hymanson and senior associate Mark Primrose unpack what this might mean in practice.
The new law is expected to come into effect in autumn 2026, at the earliest, and means even new hires can challenge dismissal. Traditionally in theatre, the approach to ending performers’ contracts has been based largely on convention.
Formal performance improvement procedures tend not to be followed between producers and performers and it is extremely rare for unfair dismissal claims to be pursued. This is driven by several factors, not least a feeling that bringing a claim for unfair dismissal is likely to be a career limiting move. There is also an understanding that sometimes things don’t work out and ‘the show must go on’ regardless.
The Employment Rights Bill, currently progressing through parliament, will introduce significant reforms. And while it will bring about change across all industries, in the theatre sector – particularly in respect of decisions by producers not to renew artists’ contracts – the impact will be very significant.
Artists, agents and unions have, in our experience, become more litigious and assertive of employment law rights in recent years; the new law will inevitably bring about more of the same.
Current practice and the current law
Engagements for long-running West End productions are usually subject to the collective agreements between the Society of London Theatre (SOLT)and Equity, BECTU and the Musicians’ Union respectively. Typically, West End theatre artists are engaged for a fixed term of 52 weeks or the closure of the show, if sooner.
If all is going well after a year, contracts are renewed for a further 52-week fixed term. When a producer chooses to go in a ‘different direction’ – using a different actor – the contract is simply not renewed, leaving the actor to move on.
Most actors are self-employed, but those engaged on long-running shows acquire employee status for unfair dismissal purposes. Once they have clocked up two years’ continuous service, they have the right to not be unfairly dismissed. Expiry of a fixed-term contract counts as dismissal under the legislation, giving rise to a potential claim. Artists engaged on short and single-run shows are often self-employed and therefore ineligible to bring any claim for unfair dismissal.
For a dismissal to be fair, it must be for a fair reason: capability, conduct, illegality, redundancy or some other substantial reason. Any dismissal usually necessitates a formal procedure. The most likely reason for non-renewal is capability – ie a performance is not up to standard. But it’s rare for performance/capability procedures to be followed. For one thing, the decision is often based on the subjective view of a director/producer rather than any objective assessment of their capabilities.
But there has been a sea change in recent years, with a much greater willingness on the part of unions, agents and actors to dispute termination of contracts and to invoke statutory employment rights.
How the Employment Rights Bill will change things
The forthcoming change to the law will mean anyone with employee status will acquire the right to not be unfairly dismissed from the first day of employment. The removal of the two-year qualifying period will mean any decision not to renew a contract will give rise to the potential for an unfair dismissal claim. A successful claim currently pays a maximum compensation amount of either 52 weeks’ gross pay or a statutory cap, (currently c. £118k), whichever is lower.
The new law also provides for a statutory probation period during which an employee can be dismissed following a lighter-touch procedure, provided the termination is for a fair reason. The statutory probationary period is likely to be nine months.
This radical expansion to protection from unfair dismissal presents challenges to employers and their approach to handling the lapse of artists’ contracts will need to be reassessed. For example, where the reasons for recasting a show are subjective, the potentially fair reason ‘some other substantial reason’ will come into play. Employment tribunal judges scrutinising ‘some other substantial reason’ dismissals often deem them unfair.
Will greater leeway be afforded to theatre producers in consideration of artistic expression? Interestingly, artistic expression falls within the ambit of freedom of expression, which is provided for in Article 10 of the European Convention on Human Rights. This is significant because courts and employment tribunals do have latitude to apply human rights principles in employment claims.
A notable example was when, in 2014, the High Court accepted that the National Theatre’s staging of War Horse without live musicians was covered by Article 10. This may deter employment judges from interfering with producers’ right of artistic freedom.
The outcome however is far from certain and producers will undoubtedly want to avoid being that test case. So, to secure mutually-agreed exits and confidentiality, it’s likely that settlement agreements and severance payments will become more commonplace when contracts come to an end.
Steps to be taken
In future, when a decision is made not to renew an artist’s contract, more process and formality will be required. Producers will need to consider greater use of performance management procedures, with rigorous documentation of and discussion with artists concerned. While performance improvement procedures used in other sectors will be inappropriate, the law will call for something akin to be applied.
Probationary periods will also become more important. At present, the collective agreement between SOLT and Equity has no provision for probation and does not adequately address performance management. SOLT members will need to address this in the next iteration of the collective agreement, just as Equity will need to recognise the need for agreed practices and procedures. And finally, producers may include a severance fund into production budgets to cover the likely costs of exiting artists.
First published at artsprofessional.co.uk on 13 May 2025.
