ESM4135B - Particular Occupations: Entertainment Industry: TV and Radio Presenters: Factors in Determining Employment Status for Tax: Control: Control over what work is carried out

The parameters of what work is carried out by the presenter is mutually agreed in the contract. Control of what work is carried out refers to the amount of control the engager can exercise within the agreed parameters.

The right to move a presenter between shows can be a relevant form of control but it is not required for the control test to be met.

The right to control format, structure and content of a show is a right to control what work is carried out (and can to a degree overlap with how the work is carried out) ESM4135A

This was one of the factors considered relevant by the Upper Tribunal in Kickabout Productions Limited v HMRC [75-81]. Typically, the presenter is required to work within a format and structure determined by the engager and required permission to make significant changes. Depending on other factors also being consistent, this would be indicative of employment status for tax purposes but would not be determinative on its own. All contracts contain a specification of what is to be done and working within the scope and terms of a specification is neutral. It is usually the case that the presenter enjoys a high degree of autonomy to create their own content but is subject to a right of ‘editorial control’ by the editorial team or producer.

A restraint of trade clause, which prevents a presenter working for another broadcaster, will be an indicator of control over what work is carried out. The extent of the control exercised by the engager will depend on the level and type of restriction(s) imposed on the presenter.

For example, the requirement for a presenter to make themselves available to record a weekly programme but leaving them free to take on work that week outside of that commitment would reflect a practical necessity, it would not be a strong indicator of control. In contrast, a suite of covenants restricting working activities following termination of a contract would usually be indicative of employment, as seen in Pimlico Plumbers Ltd and another v Smith [2018] 4 All ER 641.