June 1, 2020

With production work having largely ground to a halt for the last few months, the gradual easing of the UK’s lockdown measures and the introduction of the Government’s recently announced ‘Test and Trace’ initiative brings the real potential for the UK Film and TV industry to get itself back into gear.

The plans for how this will all work are now being fleshed out.  The BFC has just published their COVID-19 Guidance ‘Working Safely During COVID-19 in Film and High-end TV Drama Production’ while the UK Screen Alliance’s has also just published their ‘Guidance for Safe Working in Post-Production and VFX during the COVID-19 Pandemic’.  Each of these are the result of widespread and unprecedented industry consultation and Wiggin has been influential in reviewing and contributing to these publications from both an employment law and data protection perspective.  This guidance also complements the previously published broadcaster TV production guidance.

While the new guidance is extremely helpful, the practicalities of recommencing physical production pose many legal challenges which are likely to prove a serious headache to many of our clients.  In an effort to be as helpful as possible, we have put together some employment and data protection FAQs based on some of the questions we have recently received from our production clients.  These can be accessed here.

We have also highlighted below some of the areas that clients may wish to consider at this difficult time:

Risk Assessments

The first step for all productions will be to carry out a formal risk assessment to identify the particular risks that COVID-19 may pose to the production and to confirm what measures will be introduced to address these risks.  The Government has stressed that businesses should consult with their workforce regarding their COVID-19 risk assessments and they expect employers with more than 50 workers to publish these assessments online.

Government guidance on this process is available here and it is crucial this is reviewed and adhered to although it is notable that this is not industry specific.   This is therefore where the industry specific guidance comes in and it is important that clients consider these materials carefully when preparing their risk assessments.

It is critical that productions get things right in this area at the outset to help mitigate potential health and safety issues and liability. This is particularly pertinent given the ongoing concerns regarding the availability of production insurance.

Other legal considerations

There are inevitably many other legal considerations that we would advise clients address when considering their return to physical production.  The following are likely to be some of the key areas that are relevant to most productions:

• Furloughed crew: With the job retention scheme having seen such widespread utilisation within the industry, productions will naturally need to consider the process of bringing crew back from furlough. In many cases this will be straightforward.  But with the so called ‘flexible furloughing’ being introduced for a 3 month period from 1 July 2020, there are likely to be many options open to productions.  As we have come to expect with the job retention scheme, it is more than likely that the Government’s guidance will continue to evolve and clients will need to be alert to these changes and how they might factor into their short term plans;

• Contracts: We have all learnt a lot from COVID-19. Force majeure provisions have never been tested so extensively and we continue to provide regular advice to clients on suspension and termination provisions in production contracts.  Many clients are therefore seeing this as an ideal time to review and refresh their contracts to ensure they are both as flexible as possible while also implementing any necessary COVID-19 related changes for what will no doubt be many more turbulent months ahead;

• Policies: Once productions have carried out their COVID-19 risk assessments, it seems likely that many will take the step of drafting new policies in an effort to ensure the relevant safety measures are implemented properly. We expect most productions will need some form of sickness policy that addresses issues such as COVID-19 reporting obligations (for example, if a crew member or one of their household were to develop COVID-19 symptoms), the process that would be followed upon such a notification being made and the productions position in respect of sick pay (which is particularly important given the recent changes to the statutory sick pay legislation).  We also expect many productions will consider implementing a health monitoring policy, a policy related to contact tracing as well as individual departmental policies (such as specific policies for the departments where social distancing is more difficult, like Costume and Hair and Makeup).

• Data considerations: With many productions likely to be implementing measures – such as asking if cast/crew have contracted COVID-19, regularly checking temperatures of those entering the set or carrying out some form of contact tracing – there will be numerous data protection obligations to consider. Existing privacy notices will not address data processing from a COVID-19 perspective and it is therefore important that productions consider the lawful bases on which this new data will be gathered and make the workforce aware of this to mitigate potential liability in this area.  In addition, productions will need to consider how personal data collected with respect to COVID-19 is kept secure and for how long it is retained.  Productions should also carry out a data protection impact assessment documenting the processes that have been put in place.

Conclusion

From a practical perspective, at the very least it would be prudent for most productions to ask their cast and crew to sign some form of addendum to their existing contractual documentation which could deal with some of the most pressing issues and provide an acknowledgment from the individual that they have reviewed the production’s risk assessment and are happy to return to work.  However, we expect many to go much further than this.

After such a long and unusual period of inactivity on the production front, we have found it really exciting to hear about our clients’ future plans.  The industry’s resilience and creativity continues to inspire us.

We would be delighted to assist any of you in respect of your post-lockdown plans so please do feel free to get in touch with us at any time.