London orchestras face disaster over Uber ruling

The UK Supreme Court issued a historic ruling on Friday against the Uber car company, deciding that its drivers have to be treated as salaried workers rather than self-employed contractors.

The ruling has potentially devastating effects for the four main London orchestras, where players are considered freelance.

If the Uber decision is binding, musicians at the London Symphony Orchestra will be able to claim 20 days’ holiday pay for each of the past two years, along with other benefits. Players who are no longer hired can seek compensation for wrongful dismissal.

The financial consequences for the orchestras could be catastrophic.

M’learned friends will doubtless be consulted.

 

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  • Or perhaps the musicians should finally be treated with dignity and paid properly. A new model for funding needs to be worked out

  • There is longstanding case law determining that members of self-governing orchestras are genuinely self-employed. The Uber ruling does not change this.

      • ah yes all those famously profitable orchestras skimming off all that money from what would have gone to players had they been employed.

        • The problem is a socio-economic one: the amount of money in people’s pockets, this compounded by the perceived value of a concert ticket. Thus, if the price of attending an event is much greater than the glass of cheap, warm white wine in the interval, the presenter has a problem. Not enough bums on seats. The situation will not change unless the government in this country starts seriously to support the arts. Essentially, it is time to lay this at audiences’ doors, too. We treat the performers in much the same way the King or Queen treated the court jester in medieval times: enter, sing, leave (with a leap, whistle and fart), and then just f*ck off.

    • What case law are you referring to Mark Pemberton? I’m not aware of any. HMRC publish an Employment Status Manual which makes such a statement, but this isn’t “case law” – it covers employment status of orchestral musicians for tax purposes – not Employment Rights purposes.

      It’s very important to be clear that only the Courts can publish decisions about employment status where challenges are made. If a member of a self governing orchestra chose to challenge their employment status, the Employment Tribunal would look at the reality of that individual working relationship before publishing a decision. One of the most important principles reinforced by the Uber decision is that “the employment tribunal should adopt a test that focuses on the reality of the situation where written documentation may not reflect the reality of the relationship“.

      If you are aware of case law which sets a precedent here for members of self governing orchestras, please share the name of the case. Thanks

      • One of the reasons why this situation has lasted so long is that it has for a long time suited the musicians to be self-employed and it is therefore wrong to characterise it as exploitation by the orchestras. There are significant tax advantages to be gained from being self-employed. There’s a good reason why case law in this area is all about HMRC challenging the claims of taxpayers to be self-employed and the raft of legislation, including IR35, to counteract fake self-employment.

        • Worker status exists as a third status within the Employment Rights Act 96 – distinct from the binary status framework applicable to Tax. It’s purpose is to ensure that in situations where the line between employed and self-employed is blurred, if the nature of a working relationship is hierarchical, then those in such a situation are protected by employment legislation.

          Both of your precedents were heard before the third employment status of “worker” existed and so couldn’t have found in a similar way to the recent Uber finding. I would also imagine that the reality of working in a self governing orchestra has changed significantly in the last 41 years. It’s interesting though that both examples you’ve provided were cases brought by musicians who did not believe they were genuinely self-employed. That alone speaks against the comments made by some suggesting that the matter has been settled and members “like being self-employed”.

          Not only that, but Addison v LPO (1980) was a case brought by guests (not members) therefore doesn’t really seem relevant at all to the question of the employment status of members.

  • This is hilariously incorrect. The Uber ruling is specific to Uber, HMRC has released comprehensive guidelines and a testing system which clearly shows that London orchestras can continue to operate as they do within the new IR35 regulations.

    • I believe not only is ruling specific to Uber but only to a selection of its drivers covered under the case. Uber already changed its terms and conditions so current drivers are not affected by the ruling.

    • Yeah honestly, what is the point of this article? This ruling is for Uber and Uber only. It’s not saying that everyone who is freelance will have to become an employee. I’m genuinely confused…

  • It strikes me as being a completely different state of affairs : Lord Leggat’s speech made it clear that it was the particular conditions laid down by Uber which led the Court to its decision . The decision also turns on a rather arcane statutory provision where there are 3 parties to any contract for services, and I cannot see that there is anything in the relationships between freelance musicians and orchestras which corresponds with that . A further huge difference is that at least one of the London Orchestras is effectively a co-operative

  • It is shameful how Britain treats its musicians. If an orchestra performs every week, its members should be full-time, salaried and benefitted musicians, and they just have to learn to do fundraising and budgeting in accord with that. Every single orchestra in the USA does it. Of course, we only have generally one full orchestra and one chamber orchestra per city, plus opera and ballet, if separate, and not enough employment. Nevertheless, it means being able to make real music instead of sight-reading everything. The same goes for teachers, they should have security and benefits as well. But here, that’s only in universities for some teachers, and major conservatories, if even there.

    • Absolutely BC! It is blindingly obvious. Look at any municipal orchestra in e.g. Germany. Of course the musicians are salaried. Of course they get holidays. And of course their employer contributes to national insurance schemes. In some cases, the members of an orchestra are considered to hold “Beamter” status: that of a civil servant, and they do not pay income tax. Players actually practice at home because they have the time and energy to do so. Yes, I know, UK musicians are not lazy, just bl+*dy exhausted.

      • “they do not pay income tax” Fantastic news!
        Strangely my ‘Finanzamt’ seems unaware of this – could you perhaps elaborate, please?

        Seriously: every orchestra musician (irrespective of municipal, state or radio) in Germany has to pay income tax as well as health insurance and social security contributions.

        Apart from a few remaining cases in military and police bands, no orchestra musician is “Beamter” (who also pay income tax, btw).

        Generally speaking, German orchestra musicians are salaried employees, the relevant
        collective agreement / CBA is the ‘Tarifvertrag für Musiker in Kulturorchestern’ TVK with its tier system ranging from D to A+ . Some radio orchestras and a few at the top (Berlin Phil, Gewandhaus, Dresden, Bavarian State Orchestra, etc) have special agreements with salaries above TVK A+.

        https://www.dov.org/en/german-orchestral-and-theatrical-landscape

    • So who would be the employer in your scenario? The London Philharmonic, London Symphony, Royal Philharmonic and Philharmonia orchestras exist because the players want them to. The players employ management to run the business and the the musicians play the dots. It is actually a good system that has worked well for a hundred years. Also, under normal circumstances busy freelance musicians earn a reasonable income. Not the six figure riches of the American orchestras but that hasn’t done The Met much good, has it?

    • This is a truly bizarre perspective. I think by “Britain” you mean London, which is the only place in the UK where full-time symphony orchestras operate on a a freelance basis. And since these London orchestras are all self-governing player-run groups, by your logic the musicians are exploiting themselves. Of course the truth is that they organise themselves this way because the musicians find it financially advantageous to do so.

      Everywhere else in the UK, symphony orchestras employ musicians as full-time, salaried employees.

  • This would seem to be great news for so-called freelance players in London and indeed around the UK. It might also help put an end to the practice of sending an A team off on a European tour, and the B team simultaneously to some provincial festival in middle England. Some players perform so regularly that they are to all intents and purposes salaried. Furthermore, unless a concert presenter specifically (and wisely) insists on “no subs” in the contract, a London orchestra might result looking more like the Moscow Phil than the Russian orchestra itself. (Nothing against Russians of course, there is a marvellous pool of e.g. string players out there, all eking out a living somehow in one of the most expensive capital cities in the world, and many being exploited as pseudo-freelancers, along with a plethora of Brits and many another nationality.)

  • “musicians at the London Symphony Orchestra will be able to claim 20 days’ holiday pay for each of the past two years”

    They would be able to claim holiday pay from themselves?

  • If this ruling puts an end to the constantly shifting personnel in the London orchestras, so much the better. I have seen principals of one orchestra and some string players appearing with other bands on nights when their “home team” was playing at another venue. When they go to play in the regions, the first eleven is not always there. In the past when orchestras did a lot of touring, there would often be a high percentage of freelancers. Players have been known in the past to drop concerts for much more lucrative session work.
    Just look at the orchestral websites and see how many of them list sixteen first violins. Take any of the leading orchestras in Germany and you will often see twenty names or so listed for that section.
    What is wrong in having salaries and proper working conditions (akin to what the BBC offers its own orchestras) for anything that calls itself the New Palace Symphony? Freelancers have a role to play, especially in the case of illness, but I’m tired of seeing the revolving door policy operating with so many members of London orchestras. If you are such a player, you should be proud to play every concert the orchestra is contracted for, and orchestral management should ensure you are not simply paid for the sessions you turn up to, but have a decent salary that enables you to live and work in the capital.

    • Spot on. Finally an end to the orchestral equivalent of (property) gazumping maybe. Rather like the frantic choral scene in London on a Sunday morning: anyone for a tenner?

    • I’m confused. Can you please explain how a salaried structure would make more funds available for the benefits you mention? Are you naïve enough to think that the subsidy would suddenly increase to German levels? It never has – under any government.

      The BBC can, of course, rely on licence fee revenue, extracted under threat of prosecution, the LSO cannot. Your grip on reality seems to be very tenuous.

      • You obviously never bothered to read my comment. Nowhere do I refer to a “salaried structure”, nor do I refer to a subsidy rising to German levels. Perhaps you had intended to comment on something else.

        • I have read both comments and I think you need to re-read your own comment.

          Are you really nit-picking over the precise phrase “salaried structure”?

    • Alexander Hall. It is a well known fact that when the LSO was given a huge amount of Arts Council money, much to the annoyance of the other London orchestras, the personnel lists were checked weekly by Arts Council suits to make sure 90% of the Members were on the concerts!

      • The LSO was the only one of the four London orchestras that had a modicum of stability in that regard, but more recently because it cannot fill important positions – leader, principal horn, principal trumpet, principal cello, etc. etc. – faces have changed.

    • But many orchestral players actually enjoy the variety of playing with different orchestras and under different conductors. Many would resent the strictures of a full-time salaried position, which usually comes with strings attached when it comes to accepting outside engagements (such strings are tolerated only in the opera world).

      For a top orchestral player, telling him/her that he/she will be contractually bound to play in every single concert and to obtain permission to undertake any outside engagement would be a deal-breaker. He/she wants the flexibility to combine orchestral work with concerto appearances, chamber music, and teaching/masterclasses. This allows him/her to be active on the ‘soloist’ circuit, without having to take an all-or-nothing gamble thereon — very few musicians can make a living solely from ‘soloist’ gigs, and many full-time ‘soloists’ started out by combining their ‘solo’ careers with freelance orchestral positions (e.g.: James Galway; Barry Tuckwell).

      As for a not-so-stellar orchestral player, a full-time salary might be nice, but would it compensate for the inevitable boredom of being stuck with the same set of colleagues, the same conductor, and the same style of playing day in day out? In general, people go into the music profession to avoid the disadvantages of full-time office jobs… many are attracted to London, despite its hideous cost of living, by the decentralised diversity and remarkable quantity of professional musical activity.

  • Peter Gelb: Why didn’t I think of that?

    Treat the orchestra as a bunch of freelancers to be paid by the hour, hire recent Juilliard grads at $15 per hour.

  • Maybe there are too many orchestras based in London? This has been discussed for decades. This results in orchestral musicians running around for any gig since many are “play for pay.” Similar to the worlds oldest profession.

  • Perhaps it’s different in the UK, but in the US you are an employee if you are told where, when, what, and how to do your job. That pretty much sums up an orchestral player.

  • This is incorrect. Freelance musicians receive 12.07% added to their fees as Holiday Pay. This is the statutory minimum under Working Time Regulations.

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