ESM4136F - Particular Occupations: Entertainment Industry: TV and Radio Presenters: Factors in Determining Employment Status for Tax: Other indicators: Length and Pattern of Engagements

The length of engagement is neutral in determining the employment status. However, in general, the longer the engagement the more likely that it will be a contract of service and the shorter the engagement the less likely. This is not down to the length of the contract itself, but because the other factors are more likely to indicate this to be the case.

Understanding whether a presenter has had previous contracts with the hirer and are likely to have future contracts with the same hirer, can help paint a picture of how the presenter provides their services to that client.

Looking at how contractual relationships evolve can be a potential indicator as to how enduring the relationship with the client is. A more enduring relationship with the client can be a pointer to employment. Equally, short fixed-term contracts where there is little, or no, on-going relationship can point more towards self-employment.

Analysing the length and pattern of engagements can be highly nuanced and should be approached on a case by case basis. This section should also be read with ESM0553

Short-term engagements

Presenters who work on a succession of short-term engagements with a succession of different engagers will likely have an itinerant pattern of work, indicative of self-employment for tax purposes. This is because they are likely to be in business on their own account.

Long-term engagements

Presenters undertaking long-term engagements are likely to develop financial dependency on the particular broadcaster and will have less opportunity to undertake other work. The level of integration and/or financial dependence on an organisation may increase the longer the presenter holds a single engagement or performs a succession of connected engagements that establishes a longstanding working relationship. A higher degree of integration is likely in longstanding working relationships. The facts in each case should be examined to determine the extent this has become significant.

Regular features

Where the presenter undertakes work on a regular basis for the engager, on the same programme, without the repeat workstream qualifying as a series of discrete engagements the engagements should be considered together, in the round.

The existence of a regular feature is not determinative of employment status in itself. However, the greater the regularity and duration of the engagements, the more likely it is that there may be control and financial dependence.

Discrete Engagements

A discrete engagement is a genuine, separate engagement entered into on its own terms, and not one where the parties have an overarching agreement or long-standing working relationship.

Overarching agreements

The existence of an overarching agreement linking a series of short-term engagements can point towards a presenter being integrated into the engager’s business. This means they are less likely to be in business on their own account.

An overarching agreement is one which places contractual rights or obligations on the party, which extends beyond the immediate engagement. Examples of this include

• an obligation on the broadcaster to re-engage the presenter for future work and for the presenter to be party to such re-engagement
• an enforceable option in the contract for the engager to re-engage the presenter on set terms and conditions
• a right to be compensated if a minimum level of future work is not provided
• a right to sanction the presenter for public statements or behaviour, and
• a restraint of trade clause preventing work being undertaken for other engagers

In contrast, an option to re-engage a presenter which is not binding on the presenter, but which if accepted by the presenter will be on the pre-agreed terms of that option, is not an example of an overarching agreement, in itself.

The existence of an overarching agreement is not determinative of employment status. Where a series of engagements are linked by an overarching agreement they should be considered together, in the round.

The more significant an ongoing obligation is the greater the likelihood that the relationship will be one of employment.

Rostering

This is about coordination of diaries and booking. Organisations maintain a list of presenters which they use to plan ahead. This is sometimes referred to as rostering. Where presenters are rostered by making offers of assignments a short period in advance, this does not amount to an overarching agreement provided each assignment constitutes a separate engagement.

Long-standing working relationships

Where the parties have worked together for a long period, in a predictable or frequent manner, often over a series of engagements or contracts, this can create an expectation to attend and provide work.

The existence of a longstanding relationship can be consistent with employment but is not determinative in itself and you should always consider the full picture.

Example

In Airfix Footwear v Cope [1978] ICR 1210 work was provided regularly most weekdays and for some years. The Tribunal found that Mrs Cope worked under a continuing contract of service because of the relationship that built up over the years. See ESM7060 and ESM0553

A presenter may have a number of short-term contracts which looked at individually are self-employed contracts. However, if that presenter then begins to work virtually full-time for one engager the series of separate contracts with that engager may end and be replaced by a contract of employment. Because over time a relationship and commitment build up between both sides amounting to an overarching contract.

For those without an existing pattern of working for different engagers it is, as always, the full picture that matters. If the engagements themselves would otherwise amount to employment the fact that there is a series of them with the same engager is unlikely to alter this. Bear in mind though that someone starting in business may in practice work for the same engager under a series of contracts because he or she is unable to obtain contracts elsewhere. For example, a person may start in business and endeavour to obtain engagements in a particular field on a self-employed basis with a variety of engagers. If he or she continues to work in that vein but only manages to obtain work for part of the time through short-term self-employed contracts from one engager, the fact that only one engager is involved would not necessarily mean those engagements are employments. You should not only consider the length and pattern of engagement but also consider the presence or absence of the other business on own account factors such as, whether the person has a financial risk, business establishment etc.

Re-engagements

A presenter may work for the same engager repeatedly, but not have an overarching agreement or longstanding working relationship (see above). The fact that a presenter has been appointed based on a successful track record on, say, a previous series or programme, does not of itself mean that the next engagement is not capable of being a genuine separate engagement.

Consider whether the engager is hiring the presenter on a self-employed contract for a single short engagement only, a few days or a few weeks of filming, which together with other factors such as financial risk, business establishment, suggests someone in business on their own account, or whether there is an agreement to provide further work. If there is an agreement for further work, you should consider the sections above on overarching agreements and long-standing relationships.

Dealing with group structures and multiple contracts

The material above looks at the situation where there are multiple contracts with one engager and an overarching contract. But what if there are completely separate contracts for separate shows?

Media businesses often commission programmes through separate production companies and a presenter might have separate contracts with different companies in the group. Each production company is a separate legal entity and each contract should be looked at separately. Where a presenter is contracted first to one production, then unconnected to the first, is successful in winning a further separate contract with a different production, for a different show, each of these contracts should normally be analysed separately and the rules above applied.

Overarching contracts with a presenter covering their other contracts for more than one show are uncommon but they do exist. Do not conflate the different contracts unless there is evidence that the presenter also has an overarching agreement or long-term working relationship with the media company covering more than one show.

(This content has been withheld because of exemptions in the Freedom of Information Act 2000)

For other factors you may need to consider see ESM4136