ESM4139F - Particular Occupations: Entertainment Industry: TV and Radio Presenters: Factors in Determining Employment Status for Tax: Examples for radio presenters- radio presenter documentary

Gudrun is a radio presenter of a short-term finite documentary programme.

Gudrun wrote and presented on OOS’s youth-oriented network a single, 20 x 20-minute, documentary series on teen mental health aimed at young people. The series was titled “Doctor Gudrun Listens”. Gudrun is a practicing psychologist and also has a post at a medical school in charge of the training of doctors in this area. She is a well-known expert writing on this subject for publications as well as appearing as an expert on TV and Radio. She has in the past been a resident psychologist on reality programmes.

Gudrun was contracted for this as a single engagement and was paid a total fee for the whole series, in instalments.

Her contract was to write the script and present the programme, which was pre-recorded. The series included guest interviews of teens impacted by the issue and experts. These guests were found and selected by Gudrun and the production team collaboratively, with Gudrun having a veto. Gudrun interviewed the guests and these interviews were edited and included in her eventual script.

These interviews, and the recording of the rest of the links for the series, were arranged around Gudrun’s availability. Some recording was on location and some in the studio. The timing was arranged around Gudrun’s availability and that of the guests.

Gudrun was bound in her OOS contract by Ofcom guidelines.

Gudrun’s contract retains to her the right to publish the scripts and research material in book form, or periodicals, and she intends to use the material in one of her future books. The income from this book will be entirely hers.

Gudrun has an agent to manage her broadcasting work, and a different agent for her literary work. She maintains a website reflecting all her publications and work.

Outcome – Gudrum is likely to be Self Employed

Mutuality of Obligation ESM4133

This exists within the contract.

Personal Service ESM4134

Personal service is required.

Control ESM4135

Control Where and When ESM4135C and ESM4135D

The where and when is determined by Gudrun’s availability.

Control - What and How ESM4135A and ESM4135B

Gudrun drives the editorial content of the series and writes the scripts herself. Guests are mutually agreed, and she has a veto. OOS is able to control the content only to ensure compliance with Ofcom guidelines. Gudrum has considerable say over what the content is because of her expertise and standing as a scientist, the OOS editorial team must have the final say over content to ensure OOS can adhere to it’s regulatory obligations.

Where there is mutuality of obligations, personal service and sufficient control consistent with an employment, the other factors have to be sufficient to displace that presumption

There is probably sufficient control to bring this within the sphere of employment. However, the other factors point sufficiently towards self-employment so as to displace that presumption.

Other factors ESM4136

Business on Own Account ESM4136A

Gudrun has a business and profession as a qualified psychologist, with a multiplicity of engagers. OOS is another customer. Although she is not treating anyone as a patient, the work is an extension of her practice, giving advice as a psychologist. She is not economically dependent on OOS.

Exclusivity ESM4136B

Her contract contains no restraint of trade provisions.

Financial risk ESM4136C and ESM4136D

Gudrun is paid a fixed fee per episode. There is limited financial risk involved and she is not required to provide any equipment.

She is however entitled to use the material created for this engagement to further her living elsewhere via her book and newspaper writing.

Integration ESM4136E

Gudrun does not have a line manager or any responsibility for managing other staff. She presents herself as an independent party when promoting herself for other work.

Discussion

This example is quite close to the border between employment and self-employment. There are some crucial elements which, on balance, and taken with other factors, seem sufficiently inconsistent with employment

- unlike in other examples, there are no restrictions on Gudrun competing that would restrict her working elsewhere at the same time and she does work elsewhere in her field at the same time as working for OOS

- the engagement is ephemeral and also more clearly directly related to promoting her business as a psychologist.

For other examples of radio presenter roles see ESM4139