No, RichardP, subordinate legislation is not equal in weight to primary legislation. SIs have been held invalid because they were not in accordance with their Acts. Here there is a case in point. What the guidance says about "profit" is quite simply not what the act says. It the LA applies the Act it will have to refuse to follow the guidelines, but if it follows the guidelines it will be in breach of the Act.

Unless something changed while I was busy, "spontaneous" is not mentioned or defined in the Act. Accordingly, whatever the guidelines say (since it is NOT provided for them to amend the Act) a "spontaneous" performance can be a breach of the Act just as much as a planned one.

I suppose the courts might, by application of the Human Rights Act, be able to interpret "incidental" in a way that gives weight to spontaneity, but it is not a natural stretch of the word. Mind you, if they can re-write statute as they did in R-v-A (No2) (about cross examination in rape trials) almost anything is possible.