ESM4135A | Particular Occupations: Entertainment Industry: TV and Radio Presenters: Factors in Determining Employment Status for Tax: Control: How a presenter works

The right to control how the presenter performs their duties is a relevant form of control.

The essential question is whether there is a sufficient framework of control see Briggs J in Montgomery v Johnson Underwood (2001 ICR 819).

“Society has provided many examples from masters of vessels and surgeons to research scientists and technology experts, where such direct control is absent in many cases the employer or controlling management may have no more than a very general idea of how the work is done and no inclination directly to interfere with it. However, some sufficient framework of control must surely exist.”

Ofcom regulations are not in and of themselves an example of control, but if the engager makes compliance with Ofcom regulations an obligation within a clause of the contract, then this would be an example of control. The extent of such control can vary from contract to contract depending on the terms and working practice of any given engagement, not on the inclusion of the Ofcom regulations per se. For example, those involved in news and current affairs are controlled more tightly as a consequence of those regulations. Ofcom regulations can be found across much of the industry, including between engager and the commissioning broadcaster, but will vary in their effect between different roles and will need to be assessed on a case by case basis.

Working from someone else’s script or reading from an autocue without any influence or input into content is a strong pointer towards an engager having significant control over a presenter.

In cases where a presenter has some say or influence over the content of their script, or improvise live, sufficient control over how is often still present as typically the engager still holds the contractual right (regardless of whether this is exercised) to change or control

• the script, content or style of the programme, or

• the presenter’s behaviour or the expression of controversial or political views both inside the role and out

Example

In Christa Ackroyd Media Ltd v The Commissioners for Her Majesty’s Revenue and Customs: [2019] UKUT 0326 and in Kickabout Productions Ltd v HMRC [2019] UKUT01112, the Upper Tribunal agreed that the taxpayers were experts and were trusted to have significant amounts of control over their scripts in practice, but there was sufficient right of editorial control retained by the engager to point towards employment.