ESM4136 | Particular Occupations: Entertainment Industry: TV and Radio Presenters: Factors in Determining Employment Status for Tax: Other indicators

The full facts and circumstances should be considered when determining the person’s status. See ESM0549 to ESM0552

In presenter cases, there will usually be a right to personal service, and there is usually (although not always) a scheme imposing a contractual right of control sufficient to be consistent with an employment relationship. The final ‘other indicators’ test is a negative one. The question is: Are the other factors inconsistent with an employment relationship?

As Briggs J said at [42] of Weight Watchers (UK) Ltd and others v HMRC [2011] UKUT 433 (TCC):

“Putting it more broadly, where it is shown in relation to a particular contract that there exists both the requisite mutuality of work-related obligation and the requisite degree of control, then it will prima facie be a contract of employment unless, viewed as a whole, there is something about its terms which places it in some different category. The judge does not, after finding that the first two conditions are satisfied, approach the remaining condition from an evenly balanced starting point, looking to weigh the provisions of the contract to find which predominate, but rather for a review of the whole of the terms for the purpose of ensuring that there is nothing which points away from the prima facie affirmative conclusion reached as the result of satisfaction of the first two conditions.”

In Hall v Lorimer, Nolan LJ confirmed the overall approach to be taken when reaching a conclusion on employment status:

“I agree with the views expressed by Mummery J in the present case at pp. 436-437 where he says:

“In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity. This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.”

Factors to consider are

In business on own account and economic dependency ESM4136A

Exclusivity ESM4136B

Financial risk / Opportunity for Profit ESM4136C

Provision of equipment and/or facilities ESM4136D

Integration, part and parcel of the engager’s organisation ESM4136E

Length and Pattern of Engagements ESM4136F

Sick Pay, Maternity, Pensions and other statutory rights and benefits ESM4136G

Intention of the parties ESM4136H

Other factors and issues ESM4136J