Internet-based actors directory ruled not to be an employment agency by E&W High Court after union claim

About this case:

• Citation:
  [2025] EWHC 2254 (KB)
• Judgment:
  External link
• Court:
  England and Wales High Court
• Judge:
  His Honour Judge Howells

The performers trade union Equity and eight individual claimants raised a claim against Talent Systems Europe Ltd, trading as Spotlight, seeking a declaration that the fees it charged must represent a reasonable estimate of the cost of production and circulation of the publication attributable to the inclusion of information about each work seeker. The defendant denied that it was an employment agency and argued it was not appropriate for any orders to be made.

The case was heard by Judge Catherine Howells in the King’s Bench Division, with Rebecca Tuck KC and Matt Jackson appearing for the claimants and Jane Mulcahy KC and Kendrah Potts for the defendant.

A marketing tool

Since 1927, Spotlight had produced a director in which performers could pay to publish information about themselves in a manner accessible to casting professionals. The directory became a digital platform in 1997, with the hard copy phased out in 2016. The defendant described itself as a “software as a service” business allowing performers to upload a profile in exchange for a monthly or annual subscription fee.

Under the 1973 Act, an “employment agency” is defined as the business of providing services “for the purpose of finding employment with employers or of supplying employers with persons for employment by them”. The claimants’ position was that the defendant’s service of allowing subscribes to upload their information to the online directory was for the purpose of finding them employment, and therefore the defendant was an employment agency.

The sole witness led for the claimants was the President of Equity, Lynda Hay, who stated that the sole reason she paid to be on the Spotlight platform was to be available to those casting through the platform, and that it was considered essential in the industry to be a member. She contended that the defendant’s model was different from directories such as the Yellow Pages, with Spotlight having held itself out as a middleman.

Witnesses for the defendant explained that, while Spotlight did host a job board for direct advertisement of roles, it did not itself get involved in matching or obtaining work for its subscribers. The directory was in effect a marketing tool, and a common-sense interpretation of the Act would not have the defendant fall within it.

Sophisticated search function

In her judgment, HHJ Howells said of the purpose of the defendant’s service: “In my judgment the provision of the Directory is a number of steps away from a service for the purpose of finding persons employment. The ambit and role of Spotlight’s directory is narrow. There is no service provided by Spotlight to vet, amend, or improve a performer’s information and profile. That is entirely in the hands of the performer. There is no managing of money on behalf of the performer if employment is ultimately found.”

She continued: “The fact that the Directory has a search function whereby casting directors and the like can search for a performer with a particular characteristic is, in my judgment, simply a more sophisticated search function than would have been contained in an index in a hard copy directory. That does not change the purpose of the Directory; it simply improves its functionality. I reject the Claimants’ submission that the publication serves no other purpose than to permit work-seekers to find employment and provide employers with persons for employment by them. It is in my judgment a marketing tool to promote the identity and skill set of the performer.”

Noting that no regulatory body had previously taken action against the defendant’s business model, HHJ Howells said: “This is despite the fact that the Act has been in force for over five decades. Further, I note that the view of senior management and decision makers at Equity was that the Act and Conduct Regulations did not apply to the Defendant. The views of others are not in any way determinative of this matter. However, in my judgment it reflects the commonly held view (prior to this litigation) that the Defendant was not, and never had been, an Employment Agency as defined by the Act.”

She concluded: “Equity have not, until recently, considered that Spotlight falls within the ambit of the Act. When consulted in 2002 for the Conduct Regulations Equity expressly adopted the position that Spotlight should not be considered as an agency. The Regulators have apparently taken the same position. Assuming that parliament intended to act reasonably in its making of the legislation, it is appropriate to give some weight to what the view of such important stakeholders as a reasonable interpretation of the statutory provision was.”

The claim was accordingly dismissed.