ESM4136B | Particular Occupations: Entertainment Industry: TV and Radio Presenters: Factors in Determining Employment Status for Tax: Other indicators: Exclusivity

Exclusivity occurs where an engager has the right to prevent or restrict a presenter from working for another engager or imposes conditions about when the presenter can accept work from other engagers.

Exclusivity can point towards an employment arrangement, but it is not a determinative factor and can be found in non-employment relationships in some circumstances. It is typically found expressed in the following ways

• Exclusivity over the presenter’s services, and/ or the right to prior approval of outside engagements, this is consistent with an employment relationship

• There will never be an absolute right of exclusivity. Restraint of trade clauses are generally constrained by time, subject and geography. The more severe the clause the more it points to employment

• Prohibiting working in direct competition to the engager is also consistent with an employment relationship

• The requirement to consult and/or inform the engager of any other engagements (without the ultimate right under the contract to approve or prohibit outside engagements) is neutral since it does not restrict the individual presenter

• If no restrictions are in place then this is also likely to be a neutral factor, In Market Investigations v Minister of Social Security [1969] 2 QB 173 at 186F, Cooke J said, “Nor is there anything inconsistent with the existence of a contract of service in the fact that Mrs. Irving was free to work for others during the relevant period. It is by no means a necessary incident of a contract of service that the servant is prohibited from serving any other employer”

Exclusivity should also be considered when looking at whether the presenter is dependent on an engager for their living or is independent and in business on their own account. It is unlikely to be a significant factor when applied to a very limited period of time or a very specific role. Exclusivity provisions could prevent the presenter from exploiting their talents on the market place, within that profession. This is inconsistent with being in business on their own account. ESM4136A

Duration of the exclusivity right can be relevant to the extent that it places an increased obligation on a presenter, but this will ultimately be determined by the terms (see the above text in relation to first calls).

For other factors you may need to consider see ESM4136