Britain’s Got Talent and disability discrimination

Yesterday, it was reported that a contestant on Britain’s Got Talent has launched an Employment Tribunal claim for disability discrimination against Simon Cowell and his production company. There will be a pre-hearing review to determine whether there is a sufficient employment relationship between the parties. The case has echoes of a decision in France last year in which participants in a reality TV show were found to be entitled to receive the minimum wage and it could also be of significance for unpaid work in general.

The first problem for the claimant is that she was only taking part in an audition and was not successful in reaching the final stages of the programme. It is rather difficult to see how an audition can be regarded as employment for any purpose. However, like all discrimination statutes, the Disability Discrimination Act allows complaints to be brought about the arrangements which are made for the purposes of determining to whom employment should be offered. Following the case of Archibald v Fife, the word “arrangements” is defined very widely and an audition would surely qualify. Therefore, if a person who does reach the final stages would be an employee under the DDA, a claim could also be brought by a person rejected earlier.

The next problem is that even finalists on Britain’s Got Talents are not paid and so, technically, they are volunteers and there are a number of decisions stating that discrimination is not unlawful in the case of voluntary work. However, in my view, these cases are possible to distinguish. In the most recent example, X v Mid Sussex CAB, it is said at paragraph 12 to be common ground that “voluntary workers who have a contract with those to whom they supply their services, by which they contract personally to do any work, are protected”. Volunteers do not usually have any contract at all because there is no mutuality of obligations.

However, people who reach the final stages of talent shows are required to sign a contract and quite an onerous one at that. In 2008, the Daily Mirror obtained a copy of the eighty page contract for contestants on The X Factor and published some of most striking terms in a prominent article. Among other things, there is a restrictive covenant which prevents contestants from performing until three months after the last show unless the gig is being recorded in order to be used on the programme. There is also a clause which prevents any derogatory statements from being made about Simon Cowell and, in a creative approach to the conflict of laws, the contract is asserted to be “enforceable anywhere in the world and solar system”.

It would be surprising if there were not also more mundane terms, for example, requiring contestants to appear in the show every week until voted off and this, in itself, ought to be enough to create mutuality of obligations. Furthermore, it is doubtful that there would be the option of sending a substitute performer in the event of sickness and this would suggest that there is an obligation to carry out work personally. It is also worth noting that, according to press reports, similar talent shows such as Any Dream Will Do do pay participants at Equity rates when they reach the final stages. As a result, I would say that, on balance, there is a reasonably good chance of a tribunal finding that it does have jurisdiction to hear the case. Of course, even if it does get over this hurdle, it does not follow that the claim will necessarily be successful.