ESM4135C | Particular Occupations: Entertainment Industry: TV and Radio Presenters: Factors in Determining Employment Status for Tax: Control: Control over where the presenter works

One element of control is the right to control where the presenter carries out the work.

A requirement within a contract for a presenter to work at a specified place is more characteristic of a contract of employment, than one of self-employment.

The ability of theatrical producers to transfer a variety comedian to any of their theatres was a factor in the case of Stagecraft Ltd v Minister of National Insurance (SC288/52) where it was found that there was a contract of employment. This should be contrasted with the situation where the parties agree at the outset where the services will be provided, and any change to the schedule must be agreed between them, which would be characteristic of a contract of self-employment. Where a presenter is required to work on the engager’s premises it is also more likely that there will be a right of control over other aspects. You should fully establish details regarding any other aspects of control under normal evidence gathering/ fact-finding.

Where control over where the work is carried out lies with the engager, it is a pointer towards an employment arrangement for tax purposes. Where the presenter is able to decide where or when they present without the engager’s approval this can point towards self-employment. See ESM0522 and ESM0524

However, you should be careful about making a judgement concerning status where the nature of the work dictates where it should be carried out. The commissioning broadcaster may determine the location of the work at the outset, for example a large public event can only be covered, or it’s reasonable for such broadcaster to deem that it should be covered, where that event takes place. Examples could include, Royal Pageant coverage must be from Windsor Castle, a firework display on the Thames, or a 4-day event from Olympia. In such cases, this factor is unlikely to be of any significance in determining status.

In a modern workforce it is common for individuals to carry out aspects of their work at various times and locations to best suit their work life balance and for engagers to be flexible about this. The impact on the employment status for tax purposes of flexible working depends on the nature of the work being undertaken. Having the freedom to carry out preparatory work at a place and time of the individual’s choice will be considered neutral for the purposes of determining status for tax. What needs to be considered is where and when the primary role (presenting) is carried out. Where the engager has the right to determine this it will be an indicator of employment.

Other forms of control over where the work is done might include

Working from Home

Usually, some work can be done from home but what matters is whether the engager or the presenter has the final say over where the work is done. If that right is retained by the engager it is a relevant form of control for tax purposes. If where the work is done is determined by a legal requirement, such as Health and Safety regulations or Coronavirus regulations, then that is third party control and not control by the engager.

Working on Location – Presenting

In cases where presenting can only be carried out from a specific location or where the event determines the time and/or location, and this is agreed contractually from the outset, this will not amount to control by the engager over the ‘where’ and ‘when’, when weighing up the factors to determine the presenter’s status. For example, where a presenter is contracted to cover a specific live event, the fact that they must attend the place where the event is carried on is not then the exercise of control by the engager.

However, if the broadcaster/production company has the right to decide or change location and the presenter must ultimately accept their decision, then this carries more weight, indicating that the broadcaster/production company has a higher degree of control. For example, a sports event which can be covered either at a studio location or the event itself, or one where there are multiple live events and the broadcaster/production company can decide which one the presenter will go to. In a journalistic environment an example could be the broadcaster’s/production company’s right to send a presenter away from the studio to a location in order to cover a particular story. For further help about significance of location. See ESM0524

When presenters can be required to attend other events for the broadcaster/production company at a specific place or time, this also points towards an employment. For example, rehearsal at a location, a pre-meeting or meeting with a sponsor, or a post broadcast review. This would not include circumstances where, an event has been cancelled due to circumstances outside the control of the parties and the location, date or time had not been confirmed at the time of contracting. A contractual term which is contingent upon external event will not be of significance. However, a general term which allows the engager to respond to and manage events will be a relevant form of control.

Working on Location – Pre and Post Production Work

Pre and post production requirements by the broadcaster should also be taken into consideration when considering whether there is sufficient control being exercised by the engager.