ESM0549 | Guide to determining status: personal factors (general)

Some of the factors that it may be appropriate to consider are - in a sense - personal to the worker in that they are outside the terms of the direct contractual relationship the worker has with the engager for the specific engagement being considered. Such factors still need to be considered in the context of the case as a whole and the weight to be attached to them will vary from case to case.

The case of Hall v Lorimer (see ESM7160) illustrates the sort of factors that would be personal to the worker. Mr Lorimer worked as a vision mixer and the judgement of the Court of Appeal made it clear that an outstanding feature in that particular case was that ‘Mr Lorimer customarily worked for 20 or more production companies and that the vast majority of his assignments…….lasted only for a single day’.

A review of decisions made in the case of actors/entertainers also provides a useful insight into this area.

In an early status case - Davies v Braithwaite (see ESM7020) - Miss Braithwaite was an actress who performed in stage plays, in films and on the radio. Rowlatt J concluded she was chargeable under Schedule D of Income Tax and said:

‘…Where one finds a method of earning a livelihood which does not consist of the obtaining of a post and staying in it, but consists of a series of engagements and moving from one to the other - and in the case of an actor’s or actress’s life it certainly involves going from one to the other and not going on playing one part for the rest of his or her life, but in obtaining one engagement, then another, and a whole series of them - then each of those engagements cannot be considered employment, but is a mere engagement in the course of exercising a profession…’ (Page 204).

But that is not to say that everyone who has a pattern of work which involves a series of contracts will inevitably be self-employed. In Hall v Lorimer (see ESM7160) the Court of Appeal made it clear that an employment properly so called is not the less an employment because it is casual rather than regular.

In Fall v Hitchen (see ESM7055) a ballet dancer’s contract with Sadlers Wells was held to be a contract of employment. Pennycuick’s judgement in that case makes it clear that an individual who is in business or carries on a profession the income of which is chargeable under Schedule D can also have an employment the income from which is chargeable as employment income. This view was endorsed in the Court of Appeal in Hall v Lorimer).