ESM4138A - Particular Occupations: Entertainment Industry: TV and Radio Presenters: Factors in Determining Employment Status for Tax: Examples for television presenters – news reporter

This is an example drawn to represent what we think is a fairly typical news reporter but on a longer-term contract.

Key Facts

Jo is a television journalist and works for the broadcaster OOS. Jo works under fixed term contracts through her personal service company.

OOS is obliged to pay the agreed contractual fees for Jo’s services for the number of days under the contract. Jo is personally required to provide her service. Jo is required to give reasonable notice if she is unavailable. Jo has worked for OOS for six years.

The contract covers several years and specifies a number of days per year. The contract can only be terminated if there is a material breach. This is a highly stable, regular arrangement that has been renewed a number of times over the six-year period. OOS has first call on Jo’s services ‘as it may require’ and could direct her accordingly.

OOS has editorial control over Jo’s work and over any programme changes. Jo must follow the editorial guidelines and under her contract the editor has the right ultimately to tell her what stories to cover, what she can say and what is in her script. Jo, using her professional expertise, has actual control whilst “live” on air but Jo has to abide by the editorial guidelines. Jo is contractually bound by these guidelines. If Jo doesn’t follow the guidelines she will be in breach of her contract. OOS could decide not to call on Jo however, they would remain liable to make payments under the contract.

Jo cannot engage in conduct which compromises the impartiality or integrity of OOS. Jo is not allowed to provide her services as a television presenter or broadcaster in the UK or Ireland without OOS’s permission.

Jo can choose when she works, as long as she is available for the 7pm programme. Jo does not have a line manager or formal appraisals but there is a post-production meeting to hear feedback. Jo is almost always given autonomy in carrying out her work and identifying stories to follow but the right was exercised (once) to direct her to a particular story on location.

Jo also undertook some freelance print journalism selling several articles, but the contract with OOS was responsible for 90% of her income over the six-year period.

Jo is paid (monthly) and has no right to holidays, sick pay or OOS pension.

Outcome – Jo is likely to be employed

Mutuality of obligation ESM4133

Under the arrangement with Jo’s company, there is a contract with OOS for work in return for payment. There is an obligation to provide work for the contracted days or pay for those days if no work is provided. There is a work/pay bargain.

Personal Service ESM4134

Jo is personally required to provide the service. This condition is met.

Control ESM4135

Although Jo is highly experienced and expert and OOS very rarely interferes directly with how she writes her scripts or presents a piece to camera, she is subject to a right of control over what to cover, how to deliver the content and broadcast location. Where there is a contractual right of control over what, where and how the work is done, it does not matter whether that right is exercised. OOS has first call on Jo’s services “as it may require” and could direct her accordingly.

Other factors ESM4136

These are mainly consistent with an employment relationship. None of the factors below is determinative on their own, what is important is to use them to paint an overall picture and determine if they are inconsistent with employment and indicate someone in business on their own account.

In business on own account and economic dependency ESM4136A

This is a highly stable regular and continuous engagement renewed several times. In addition, the payments made to Jo represent 90% of her income in the field of journalism over the six-year period indicating that she has a high degree of economic dependence on a single engager. Although Jo describes herself as a ‘freelancer’ there is little work outside of this engagement and the absence of the sort of business activity to generate a stream of regular work in the same profession for different clients. This points away from self-employment.

Exclusivity ESM4136B

Jo agrees not to provide her services as a presenter or broadcaster for others without permission from OOS, who have first call on her services. A broad right to restrict her availability to work for others, even if that is waived by OOS at its discretion, points away from her being independent of OOS and in business on her own account.

Financial risk ESM4136C

There is limited financial risk. Jo is paid monthly for a fixed number of days per year under the contract.

Integration: Part and parcel of the engager’s organisation ESM4136E

Jo does not have a line manager or formal appraisals, but she does attend post production feedback meetings.

Length and pattern of engagement ESM4136F

Jo is engaged to provide her services under each contract for several years, which can only be terminated if there is a material breach. Length of engagement is neutral but long engagements like this, tend to be associated with other factors that point towards employment for tax and in this industry, short engagements are often associated with other factors pointing more towards the person being in business on their own account. The duration and extent of the commitment between Jo and OOS evidenced by several renewals, when viewed alongside the minimal other activity in the field of journalism, is such that Jo is reliant on OOS for a significant part of her income in the field of journalism over the six- year period. The length of engagement helps build a picture that this is not simply the latest in a series of contracts with different media outlets in order to generate sufficient work.

Pay and holidays ESM4136H

Frequency of payment, absence of holiday, sick pay or pension entitlement is usually a neutral factor.

For other examples of TV presenter roles see ESM4138