ESM4138B - Particular Occupations: Entertainment Industry: TV and Radio Presenters: Factors in Determining Employment Status for Tax: Examples for television presenters - News and current affairs reporter
This example is similar to the news reporter example ESM4138A but shows that
- a right of control over how, when and what can often be sufficient even if the rights are rarely or never exercised.
- an employee can be given a great deal of control over when they work but that if both parties have to deliver a minimum amount of work and the engager has the right to a final say over when shifts are worked, this can point towards an employment.
Key Facts
Yasmin has a contract with OOS to present live television news coverage. The contract offers payment per day, with a minimum number of days per year. OOS requires Yasmin personally to fulfil the contract. A substitute can be sent but only subject to prior agreement from OOS, who have a right to reject the substitute.
OOS is obliged to pay the full contract fee if the minimum day requirement is not met due to its failure to call on the presenter’s services. OOS has the right to terminate and suspend the contract.
OOS operate a shift booking system where presenters are able to turn down shifts and the rota is organised on a flexible basis. The presenter is obliged to work on sufficient call days to meet the minimum days requirement under the contract. OOS is obliged to call on the presenter on sufficient days to enable them to do so.
While the producer/editor is unable to interfere with the presenters’ actions during a live broadcast and Yasmin is trusted to write much of her own script, or to improvise parts, OOS has a binding contractual right to hold her to their editorial standards and to choose whether to intervene.
OOS has the contractual right to decide the time and place where the presenters are to perform the required services, although in practice they chose not to exercise the right to require the presenter to work away from the studio.
OOS has the right to prevent the presenter working as a presenter for other broadcasters and from carrying out a number of activities with the aim of protecting their impartiality and thereby that of OOS. In practice Yasmin does undertake some other work, however she is reliant on the OOS contract for her main income from her business activities of journalism and presenting.
Outcome – Yasmin is likely to be employed
Mutuality of obligation ESM4133
There is a contract with OOS for work in return for payment, including obligations for a number of minimum days or payment if they are not called by OOS. There is a work/pay bargain.
Personal Service ESM4134
Yasmin must personally provide the service – her right to send a substitute is fettered.
Control ESM4135
Although Yasmin is highly skilled, she is, through her contract subject to a right of control by OOS, holding her to editorial guidelines over content and bias, with the producer/ editor having a right to control how she performs her duties. Yasmin’s right to work for others without prior permission is constrained. OOS can also control where the duties are performed. Unlike the Jo example above, there is no evidence that the control rights are exercised over content, the stories to be covered or location being exercised, it is sufficient that these contractual rights existed.
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. Although, with permission, Yasmin does other work and considers herself a freelance journalist, she is economically dependent on OOS for her main income most of the time.
Exclusivity ESM4136B
OOS have the right to constrain Yasmin’s other work. She is severely constrained in her ability to exploit her presenting expertise in the marketplace and profit from being good at her main occupation of journalism and presenting. This points away from a person being in business on their own account and OOS simply being a client or customer.
Financial risk ESM4136C
There is limited financial risk. Yasmin is paid daily for a minimum number of days per year. OOS are obliged to pay the full contract fee for the minimum days.
Integration: Part and parcel of the engager’s organisation ESM4136E
Yasmin does not have a line manager or any responsibility for management.
Length and pattern of engagement ESM4136F
Yasmin is engaged under a contract for a minimum number of days per annum; length of engagement is generally neutral. The duration and extent of the commitment between Yasmin and OOS evidenced by several renewals, when viewed alongside the minimal other activity in the field of journalism, is such that Yasmin is reliant on OOS for a significant part of her income in the field of journalism over the five-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.
For other examples of TV presenter roles see ESM4138