ESM4138C - Particular Occupations: Entertainment Industry: TV and Radio Presenters: Factors in Determining Employment Status for Tax: Examples for television presenters - Factual “magazine” programme with news and current affairs content

This example shows that as with the news readers and news presenters, presenters of other programmes can also be employed or inside Off-payroll working rules. See ESM4138

Even where the person is highly skilled and helps shape the programme, the existence of a framework of control places this in the employment sphere.

Although the person had a few other clients, other factors were not inconsistent with an employment.

Key Facts

Marcus is a television journalist and works for OOS under fixed term contracts lasting 12 months. These have been renewed over a five-year period. He is the main presenter of a magazine programme which is a mixture of news, celebrity news, fashion, recipes, interviews and consumer news. Marcus is required to personally provide the service.

Each contract require Marcus to provide his services to OOS for four days. In the later agreements it is specified such other dates and locations as notified in advance by OOS. If OOS cancel any dates and cannot reschedule for reasons, other than Marcus’s unavailability, he is entitled to be paid in full for these dates.

In practice, for the sake of maintaining a good working relationship, Marcus may decide not to enforce this right. Marcus is paid fees for all services, including preparation time and not just when he is “on-air”.

OOS has the contractual right to control where and when Marcus performs his services; to some extent control how he performs his services; to some extent restrict his other activities. OOS determines the nature of the programme and the format. OOS has ultimate editorial responsibility for the programme and ensures Marcus complies with Ofcom guidelines. Under the contract, OOS has a right of editorial control over the stories to be covered and interviewees. As Marcus is very experienced, he is mainly responsible for programme content and the company trust his judgement and taste but could if necessary, ensure Marcus complies with requests made by the executive producer.

Marcus’s contract provides for him to attend rehearsals and de-brief meetings at the studio however in practice he is so experienced and trusted, OOS does not enforce this right.

Marcus undertakes some other television and print journalism, but his main source of income is the OOS programme.

Outcome – Marcus is likely to be employed

Mutuality of obligation ESM4133

Marcus is provided work by OOS on at least the specified dates in return they pay the fixed fee and must pay for any dates they cancel. The mutuality test is satisfied there is a binding contract in place and that the mutual obligations created under the contract, are a “work/wage bargain”.

Personal service ESM4134

Marcus must provide the services personally.

Control ESM4135

OOS cannot enforce their contractual rights during “live” programmes but can take action after the programme to enforce their requirements. However, OOS has the contractual right to control where and when Marcus performs his services; to some extent control how he performs his services; to some extent restrict his other activities. OOS has control over deciding what needs to be done and the manner in which it is done. OOS has ultimate editorial responsibility for the programme and the right to instruct Marcus to comply with Ofcom guidelines. OOS has sufficient framework of control to place the relationship in the employment field.

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.

Business on own account and economic dependency ESM4136A

Marcus has been is a freelance journalist for many years and undertakes some other work in print and on television. This is a highly stable regular and continuous engagement renewed several times but, as this engagement is his main source of income, he is economically dependent on these activities/ OOS for a significant part of his income.

Exclusivity ESM4136B

OOS have the right to constrain Marcus’ ability to take other work which points away from an individual being in business on their own account and OOS simply being a client or customer.

Financial risk ESM4136C

There is little financial risk. Marcus depends on OOS for this income and when OOS are unable to reschedule an event they will pay Marcus. Marcus was also paid for his preparation time and fees.

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

Marcus does not have a line manager or any management responsibilities.

Length and pattern of engagement ESM4136F

Marcus is engaged under a series of contracts for the show. The length of the contracts is neutral. A longer engagement or an overarching longer-term commitment joining a series of short contracts tends to be associated with other factors pointing towards employment for tax. The duration and extent of the commitment between Marcus and OOS evidenced by several renewals, when viewed alongside the minimal other business activity, is such that Marcus is reliant on OOS for a significant part of his income 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 which a business establishment is maintained in order to generate sufficient work.

For other examples of TV presenter roles see ESM4138