ESM4138D - Particular Occupations: Entertainment Industry: TV and Radio Presenters: Factors in Determining Employment Status for Tax: Examples for television presenters - expert factual presenter – non-news

Key facts

Rowena is a world-renowned chef who owns her own chain of restaurants. Rowena is engaged to film 6 episodes on location over 4 months. The programme carries her name in the title in order to attract her fans. Filming days are arranged around her availability. She develops her own recipes investing in time, ingredients and working at a location that she selects and pays for. There is a tie-in book and she is paid a share of profits.

Rowena provides the location and equipment for filming days and is responsible for their upkeep. She writes her own script and ad libs but works with the editor who is experienced in what will work on television and gives her advice.

Rowena’s contract affords her control of her script and the right to bring in any guests (often chef’s she has trained) she requires. However, Rowena’s contract contains a general requirement for her to comply with Ofcom guidelines. Rowena is required to attend a studio to record voice-overs but otherwise, Rowena’s agent would negotiate a further fee if Rowena was asked to perform other duties or at other locations.

Outcome – Rowena is likely to be self-employed

Mutuality of Obligation ESM4133

There is a contract with the producer for work in return for payment. There is a work/pay bargain.

Personal Service ESM4134

Rowena is personally required to provide the services.

Control ESM4135

There is a requirement under the contract to abide by the Ofcom guidelines but other editorial control rests with Rowena under her contract. Rowena develops her own recipes and retains rights over them for the purposes of the book. The engager has no control over what kind of recipes Rowena uses and how these are presented in the show. The locations are negotiated at the outset and there is little right to control where her services are performed. Rowena effectively controls when as it is based on her availability. Although there is some contractual right to hold Rowena to her obligations to abide by Ofcom rules, looking at the other elements of control, this is insufficient control to make the engager the master of Rowena. Ofcom has very little in the rules concerning the activities of chefs.

Other factors ESM4136

Because there is insufficient control, it is not necessary to consider other factors. However, other factors are also inconsistent with an employment.

The costs of providing ingredients are not a significant financial risk. Similarly, where the location is not Rowena’s development kitchen or one of her restaurants the locations are not indicative of significant, but they are a provision of equipment and materials from the negotiated fee that is unusual in scale and not like other presenters. This is a commercial element. Noting that had Rowena used one of her restaurant or development kitchens to film the programme this would be seen as significant capital investment which, would point toward a higher degree of financial risk.

The contract is for a short period of time and Rowena is not economically dependent on her engager having significant other activities in the same field. There is some share in profits. Taken together these elements point to her being in business on her own account and not an employee.

If in Rowena’s case there had been sufficient control consistent with employment the other factors would have become crucial to considering status, and the other facts tend to point towards Rowena being in business on own account. Looking at her situation in the round, she has little dependency on her engager for a living. The commitment is for a short duration only and as Rowena is already a Chef with her own business – the engagement looks to have the character of being a promotion for, or ancillary to her main business.

For other examples of TV presenter roles see ESM4138