A GUIDE TO LIABILITY INSURANCE FOR ADULT PRODUCERS
By Alan Wright, F.C.I.I., Chartered Insurer
This article may contain information you dont necessarily want to hear, but hopefully it will provide some useful guidance for those in the industry who take their responsibilities seriously.
Do I really need Employers Liability Insurance (EL) and what happens if I dont have it?
Employers Liability insurance (EL) is one of most misunderstood insurance covers available today. So confusing are the regulations that surround it, even the Government cannot provide definitive advice! However, dont let that put you off, as the Health and Safety Executive (HSE) would readily prosecute you if there was an incident in the workplace and they thought you should have EL insurance and you dont. You could be taken to court and prosecuted the maximum penalty being 14 years in jail and an unlimited fine. You can also be disqualified from running a company, just for having no EL insurance.
Do I really need it?
The situation is clear cut with larger well established adult production companies, who I would expect to seek professional advice from a broker as to their insurance requirements. Further comment is not therefore required.
So lets consider the smaller end of the industry. You and your partner are a producer/ performer team who create and distribute your own material. You establish a Limited Company as joint working directors, which means you MUST by law have EL cover, as required by the Employers Liability (Compulsory Insurance) Act 1969 even if you are a husband and wife team! The only exception to this legal requirement is a Limited Company with only ONE working director who owns fifty per cent or more of the issued share capital, i.e. there are no other persons whatsoever doing any work in the company.
You may perhaps have a friend who occasionally assists you on shoots, who is not even getting any payment. But if something happens to him or her, even if they dont try and sue you, the HSE may take up the matter and indeed the Police could decide to prosecute. EL breaches are dealt with under criminal law the same as murder, arson and assault!
Could I be held responsible if someone injures themselves whilst following my instructions?
Absolutely yes! And this is where you also need to think about the contractual relationship between yourself and your performers, in order to establish which insurance(s) you need. The simple way to understand the differences between Employers Liability (EL) and Public Liability (PL) is to use the example of a shoot in a hotel bedroom. The model is posing in the bathroom and you ask her to step back. She slips and falls, banging her head on the edge of the bath, injuring herself in the process. If she was deemed to be your employee, cover would fall under EL. If however she was deemed to be a self-employed person, then that would be a matter for your Public Liability insurance.
YOU are responsible for the health and safety of your employees while they are at work. They (and any former employee) may be injured in your workplace, or they may become ill as a result of work performed for you. They might try to claim compensation from you if they believe you are responsible. The Employers Liability (Compulsory Insurance) Act 1969 requires that you have at least a minimum level of insurance cover against any such claims.
So Im still not thinking this applies to me. Whats the definition of an Employee?
This is the $64,000 question, and where the regulations get confusing. For example, someone that assists you, to whom you pay a day rate would be classified as an employee even though you are not responsible for their tax and national insurance contributions.
In general terms, you need EL insurance if someone works for you and any of the following apply:
You deduct national insurance and income tax from what you pay them
You control where and when they work and how they do it (this could be as simple as you deciding when to have a fag break during a shoot!)
You supply most materials and equipment (e.g. toys and other equipment)
You require that person only, and they cannot employ a substitute if they are unable to do the work.
You may not need EL insurance for people who work with you if:
They do not work exclusively for you
They supply most of the equipment and materials they need to do the job
They are clearly in business for personal benefit (careful here if perhaps its a first time model who doesnt really know whether to enter the industry)
They can employ a substitute when they are unable to do the work themselves.
Bear in mind that even if someone is self-employed for tax purposes they can be classed as your employee for one or more of the above reasons. If they are, you will need EL insurance to cover them.
YOU have to decide yourself if your situation would fall into these categories, although my advice would always be to err on the side of caution if in any doubt!
So an incident has occurred what happens now? Surely the insurance company will do whatever they can to avoid paying the claim!
Because EL is a compulsory class of insurance, if an employee suffers injury or illness and the employer is held liable, the EL insurance must by law compensate the victim and it WILL pay a claim.
BUT .if it were to be proved that the employer had acted recklessly (e.g. you ignored out of date certificates perhaps) then the insurer would be entitled to seek a recovery of their outlay from you. If you have sufficient assets, and the payment happened to be a big one, the financial consequences could then be very serious (e.g. repossession of your house, etc.)!
If we take the scenario where one model at a shoot infects another with a STI, your EL insurance would still operate (i.e. cover protects you if one of your employees injures another in the course of their employment). However, if it transpired that the offending model, in regarding herself as a self employed person, had actually taken out her own PL insurance, then your EL insurer could seek a recovery of their outlay from the models PL insurer!
Still with me?!
The beauty of EL insurance is that, for the avoidance of any doubt, it extends to treat self employed persons working under your direction as your employees. Any technical arguments about whether someone is an employee or a self-employed person therefore become largely irrelevant.
Can I buy EL Insurance on its own?
Most responsible Insurers would not allow you to purchase PL cover in isolation if they believe you require EL as well. Whilst you may find this annoying, the Insurer is actually assisting you by trying to prevent you from breaking the law! Well look at PL in a bit.
So what should I remember about EL Insurance?
1. If in doubt buy it. Notwithstanding the premium, insurance is preferable to a jail
2. Models CAN be classified as employees, even if you dont think they are!
3. Take reasonable steps to protect your employees avoid exposing them to
circumstances that are likely to result in injury or illness.
Further information can be obtained from the Health and Safety Executive and if in doubt you are advised to check your own requirements with them.
Public Liability Insurance
So youve read the above and you still dont believe you need EL insurance. Well if your model isnt an employee then she must be a member of the public, and you still owe her a duty of care. So you need Public Liability (PL) insurance!
PL insurance covers your liability to members of the public. This could be a simple accident such as someone falling over a tripod, right through to the more serious STI related issues that could leave someone disabled for life.
Courts take a dim view of accidents these days, and with the growth of the where theres blame, theres a claim culture, its important that you arrange suitable cover. And if you regard your model as a member of the public (as opposed to your employee) then you would have to assume shes far more likely to take legal action against you!
Unlike EL insurance, PL also covers you for damage to third party property in addition to third party injury. So if your model burns down that hotel when she doesnt stub out her cigarette end properly .youre covered!
And finally, a word of advice to any models reading this
Youve arrived at the shoot and the producer has asked to see your certificates, which youve duly proved are up-to-date. And hes produced a model release form for you to sign.
Why not ask him for sight of his Certificate of Employers Liability insurance. Its the only way to ensure he has the financial protection to compensate you for any injury or illness you incur while working for him.
Alternatively, if you dont regard yourself as his employee (because you consider yourself to be self-employed) then you really need to consider taking out your own Public Liability insurance!
Alan Wright is a Chartered Insurer and Member of the Guild of Erotic Artists. He has over 30 years experience in the insurance industry and his erotic artwork, including his commissions for a number of UK adult models, can be viewed at www.xposeart.com
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