Not one to shy away from speaking his mind in relation to COVID-19, Ian Brown announced earlier this month that he was pulling out of the Neighbourhood Weekender festival amidst debate over vaccination passports.
Brown has been a vocal critic of the COVID vaccine, as well as criticising the use of face masks to prevent the spread of the virus. In a recent tweet, he said: “My Saturday night headline show at NHBD Weekender Festival will now not happen! I refuse to accept vaccination proof as condition of entry. Refunds are available! X”
Whilst the government’s lockdown exit strategy has provided a glimmer of hope for the festival circuit in 2021, there is still a great deal of uncertainty. We’ve been discussing the key concerns for event organisers since the beginning of the pandemic last year, all the way through to the recent cancellation of Glastonbury 2021 earlier this year, (plus the impact of the never-ending Brexit saga on touring artists).
Brown’s recent comments have, however, thrown another issue into the mix: vaccinations. Mandating vaccinations in any form in the context of the live events scene is a tricky balancing act to navigate.
Whilst many festivals sell the largest chunk of their tickets before headline announcements, popular billings can boost sales. Artists generally seek to be paid half of their fee before the show as a deposit, with the rest payable upon completion of the performance. If that kind of deal is agreed and there is an event beyond the parties’ control that stopped the show going ahead, (e.g. a flood, fire, or government-imposed lockdown) then, in general terms, the artist will be expected to return the deposit.
However, in Brown’s case, there are no current circumstances that would prevent the event itself – currently slated for September – from going ahead. Apparently, it was Brown’s own personal beliefs that informed his decision to withdraw from the event. Normally, if an artist were to pull out in this way, the failure to perform would amount to a breach of contract – meaning that not only would he be expected to return the deposit but a claim could be brought for damages arising from his failure to comply with the terms of his contract.
An “anticipatory breach” situation like this – where the talent announces its intention not to perform - effectively amounts to a repudiation of the contract – typically the organiser can choose to accept the repudiation, terminate the contract and pursue its claim.
It should not be forgotten that where there is a breach of contract how the party not in breach reacts (and how quickly it reacts) can be important, especially in the case of repudiation. It is therefore important to properly consider all implications in a timely manner. In appropriate cases, we can work with clients to reduce or avoid the costs of disputes through our LS Unlock initiative which comprises a free initial assessment of significant commercial claims together with a menu of alternative fee arrangements (for more information click here: Lewis Silkin - LS Unlock).
It may sound simple to insist on employees having the vaccination, but in practice a “no jab, no job” policy can be troublesome. The key legal problems with mandating the vaccine are the risks associated with dismissing employees who refuse and have over two years’ service, and the potential for discrimination claims from employees with protected characteristics. True volunteers do not enjoy these same rights, but the issue of their employment status can sometimes be a tricky one.
Our employment colleagues have discussed the issue of mandating vaccinations in the workplace, considering questions like:
- Can we make the Covid-19 vaccine mandatory for existing employees and new starters?
- What about contractors, agency workers and visitors to our premises?
- How do we deal with "anti-vaxxers"?
For answers to these questions and more, visit our “Coronavirus vaccination - FAQs for employers” page.
On the consumer side, organisers should continue to pay close attention to government advice and ensure they act in line with consumer law. Remember, if the event doesn’t or cannot go ahead, the ticket holder will be entitled to a refund. But the position will be different if future government guidance mandates vaccination of attendees at live events and a ticket holder’s vaccination doesn’t take place in time (or they decide not to have it). There are some real public policy issues at play here. The industry needs a clear road map setting out requirements by law sooner rather than later.
We’ll be watching future announcements – especially the results of the Government’s Events Research Programme – with interest and will give further guidance on these points.
“[E]x-Stone Roses frontman Ian Brown declared that he would not play at an event with a vaccination-only policy. This has added to the complexity of communicating entrance requirements to performers, as well as to punters and stage crew.”