This article was first published in Entertainment Law Review, Issue 200, 2025, and is reproduced here with their kind permission.

The High Court has held that Spotlight, an online casting directory, is not an “employment agency” under the Employment Agencies Act 1973 (the “Act”).[1] The court found Spotlight’s SaaS platform functions as a marketing tool enabling performers to publish profiles for casting professionals, rather than a service that finds employment or supplies workers. On that basis, the Conduct of Employment Agencies and Employment Business Regulations 2003 (as amended) (the “Conduct Regulations”) did not apply.

Spotlight was founded almost a century ago as a publishing company, with its original service being the production of a hard copy directory which contained profiles of entertainment performers such as actors, presenters, dancers, and voice-over artists. These profiles would typically include a headshot and information provided by the relevant performers. This hard-copy directory would be circulated to casting and theatre directors, who would use these profiles to help them decide who to cast in upcoming productions.

In 1997, Spotlight transitioned to an online software as a service (“SaaS”) model, with the hard-copy version fully discontinued in 2016. Despite discontinuing the hard-copy directory, the directory itself remains largely unchanged. Performers who subscribe to the online platform publish information about themselves (including headshot, career highlights, skills, etc), which can then be accessed by casting directors who are also subscribed to the platform. Spotlight does not become involved in the casting process and does not act on behalf of its performer subscribers in any “work-seeking” negotiations with casting directors; this is carried out between the performer subscriber (or, usually, their agent) and the casting director directly.

On 11 July 2024, Equity and eight of its members (together, the “Claimants”) filed a claim under Part 8 of the Civil Procedure Rules. Equity is a trade union representing almost 50,000 performers and creatives, and the members who brought the claim alongside Equity are predominantly councillors or lay officers of Equity as well as subscribers of Spotlight.

The Claimants sought multiple declarations centred around the assertion that Spotlight was operating as an “employment agency” under s. 13(2) of the Act. Section 13(2) defines an employment agency as “the business … of providing services (whether by the provision of information or otherwise) for the purpose of finding persons employment with employers or of supplying employers with persons for employment by them“.

If Spotlight were deemed to be an employment agency under the Act, this would not only restrict the fees that Spotlight would be able to charge its subscribers but also expose Spotlight to a variety of obligations and potential penalties under secondary legislation, namely the Conduct Regulations.

Spotlight strongly disputed Equity’s claim, arguing that it is not, and never has been, an employment agency. Spotlight’s position was that its main function is “to provide a platform that enables actors and other performers to publish their personal details and work history in order to advertise themselves in a published directory that is accessible by casting professionals”. This ran in contrast to the Claimants’ position, which was that Spotlight operated a service which served the purpose of finding persons employment with employers and therefore satisfied the definition of an “employment agency” under the Act.

In reaching its decision, the High Court primarily considered three issues.  The first was whether Spotlight is an “employment agency” under the Act. The second was, if so, did it fall within the exemption under Regulation 26(5)(b)(i) of the Conduct Regulations on the basis that its directory was the only “work-finding” service it offered?  Thirdly, if the exemption did not apply, were its fees reasonable for the purposes of Regulation 26(5)(b)(ii)?

Issue one: whether Spotlight is an “employment agency” within s. 13(2) of the Act.

Her Honour Judge Howells stated that if Spotlight is not an employment agency under the Act, then the Claimants’ claim fails. As such, this was the first issue to be determined.

The Claimants contended that the directory platform operated by Spotlight is a service provided “for the purposes of finding persons employment with employers”. In their submissions, the Claimants relied on the case of Simply Learning[2] and sought to establish that Spotlight holds itself out as a middleman between the performer and the casting director[3].

The judge found that Spotlight’s directory is a “number of steps away from a service for the purpose of finding person’s employment” and was therefore not an employment agency. Despite the Claimants’ argument to the contrary, the judge stated that Spotlight is a “marketing tool”, used by performer subscribers when promoting themselves to potential hirers. As set out in the judgment, the use of this marketing tool may lead to employment; however, that is not its purpose.

Unlike the tuition companies in the Simply Learning case, Spotlight does not edit or vet the profiles of the performers on its platform, nor does it manage money on the performers’ behalf. The judge further highlighted that Spotlight does not pass performer profiles on to casting directors or make recommendations for roles; it instead simply hosts the performers’ details for casting professionals to peruse. Spotlight, therefore, did not act as a middleman in the sense opined on in the Simply Learning judgment.

In making her decision, HHJ Howells noted that Spotlight’s business model and directory have fundamentally remained unchanged since its inception and that no regulatory enforcement agencies have sought to take action against Spotlight despite the Act and Conduct Regulations being in force for decades. This bolstered her view that the wording of the Act and Conduct Regulations were unambiguous and were not applicable to the directory provided by Spotlight. The judge also noted that, despite a successful relationship of many decades between Equity and Spotlight, it is only now (following a recent acquisition of Spotlight by the US Company Talent Systems) that Equity is seeking to classify Spotlight as an employment agency.

The judge drew parallels between Spotlight and other service platforms, including Checkatrade, IMDb Pro and Yell.com. The judgment noted that the same analysis could extend to legal directories that list barristers and solicitors alongside their areas of specialism. While one might contend that such directories “provide a service” by furnishing information about (let’s say) a plumber or lawyer for the purpose of finding them work, it is evident that the legislation was never intended to sweep so broadly as to encompass these types of services.

As Spotlight was found not to be an employment agency under the Act, the remaining issues no longer required determination. Nevertheless, the judge briefly considered the outstanding issues raised by the Claimants in her judgment.

Issue two: did Spotlight fall within Regulation 26(5)(b)(i), being an employment agency, whose only work-finding service is that of providing the kind of publication referred to?

As set out above, HHJ Howells found that the Spotlight does not fall within Regulation 26(5)(b)(i) of the Conduct Regulations, as it is not an employment agency under the Act.

However, in her judgment, consideration was also given to whether Spotlight would fall within a specific carve-out for directories within the Conduct Regulations if it were deemed to be an employment agency. Under Regulation 26(5) of the Conduct Regulations, if Spotlight were deemed to be an employment agency under the Act, it would be permitted to charge a for-profit fee in respect of its services if its directory was the only “work-finding” service it offered.

Other services provided by Spotlight that the Claimants alleged were work-finding included automated job emails, access to recording studios, workshops, and an agent-finding feature. For a variety of reasons, the judge found that these did not amount to “work-finding services” as envisioned under the Conduct Regulations.

The workshops covered a number of discussions and panels aimed at improving skills and wellbeing, which may improve employability, but were not “work-finding”. The job emails were not tailored, as Spotlight did not conduct careful vetting or tailoring. Additionally, it was found that these generic emails were a feature of the directory itself, rather than a separate service.

Thus, the court concluded that these services were several steps removed from the type of work-finding services the Conduct Regulations were intended to cover. Accordingly, Spotlight would fall within the relevant exemption under the Conduct Regulations, permitting it to charge for-profit fees even if it were deemed to be an employment agency.

Issue three: were the fees charged by Spotlight no more than a reasonable estimate of the cost of production and circulation of the publication attributable to the inclusion of information about that work-seeker as provided for by Regulation 26(5)(b)(ii)?

As referred to above, under Regulation 26(5) of the Conduct Regulations, if Spotlight were deemed to be an employment agency under the Act, it would be permitted to charge a for-profit fee in respect of its services if its directory was the only “work-finding” service it offered. However, if the directory was not the only work finding service it offered, then it would only be able to charge a fee for its equivalent to a reasonable estimate of the cost of production and circulation of the publication.

Whilst it was again unnecessary to make a determination of this issue (as Spotlight was found not to be an employment agency and as none of its other services were found to be “work finding”), the judge provided her opinion. The judge noted that Spotlight’s subscription costs had increased over the last few years; however, most businesses seeking to remain afloat increase their costs year-on-year in line with inflation and the relevant market. Indeed, as submitted by Spotlight’s counsel, Equity’s own cost of membership had increased by 18.5% in recent years compared with Spotlight’s more moderate increase of 7.8%. The judge therefore found, based on the material before her, that it would be difficult to conclude that Spotlight’s fees were more than a reasonable estimate of costs.

This case examines a rarely litigated area; there is scant authority on what businesses fall into the definition of “employment agency” under s. 13(2) of the Act or how the many carve-outs and mechanics of Regulation 26 of the Conduct Regulations should be interpreted.

The judgment therefore represents a measured and understandable demonstration of appropriate judicial caution to Equity’s attempts to disrupt a century-old business by reclassifying it under legislation enacted almost 50 years after its incorporation. This approach contrasts with the well-cited case of Uber.[4] In Uber, long-settled legal principles were applied to a disruptive business model, where clear policy reasons necessitated application of uncontroversial worker protections.

Equity v Spotlight was very different. To treat a long-standing directory as an employment agency (or, indeed, a work-finding agency) would not only turn historic understanding of the platform’s function on its head, but would also put similar business models and other directories at risk of falling within the scope of the Act and, by consequence, the Conduct Regulations. The court was right to resist such a shift absent a clear legislative mandate.

In short, the decision illustrates the judiciary’s restraint in the face of arguments that would change the status quo through legal construction rather than appropriate, fit-for-purpose legislation. Where a 1970s Parliament has defined “employment agency” in terms that understandably do not naturally capture SaaS business models, and regulators have for decades declined to treat Spotlight as an employment agency, courts should be slow to recast the line. This preserves legal certainty for established industries and businesses which is of material importance in the turbulent markets of today.

References

[1] Equity v Talent Systems Europe Ltd (t/a Spotlight) [2025] EWHC 2254 (KB).

[2] See Simply Learning Tuition Agency Ltd v Secretary of State for Business, Energy and Industrial Strategy [2021] ICR 79.

[3] In this respect, it should be noted that Simply Learning was not analogous with the matters to be assessed in this case. It primarily concerned whether “tutors” fell under the definition of “person for employment” under s. 13(2) of the Act, rather than whether tuition companies offering the tutors’ services were employment agencies.

[4] Uber BV v Aslam [2021] UKSC 5.