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Who can have self-employed status in the film, television and production industries?

Posted by Lesley Furber on Jan 3rd, 2020 | Employment law

Crunch Who can have self-employed status in the film, television and production industries? - Image of TV cameras

With Workline’s origin in the Film and TV Industries, we thought we’d return to the infamous HMRC ‘Film, Television and Production Industry Guidance Notes’, that provide advice on how to determine the correct employment status of workers in these industries, and who can be genuinely self-employed/freelance.

These guidance notes were updated at the end of December 2019 and we cover all the major points of the updated guidance here. They only apply to off-screen ‘talent’, not to actors or presenters.

The old guidance was issued originally in 2003, revised in 2011 and 2012, and the original guidance notes provided advice “with regard to the application of PAYE and National Insurance Contributions to non-permanent, casual and freelance workers in the Film, Television and Production Industries” and contain the all-important list of who can legitimately be freelance in these industries.

Deciding a worker’s status is crucial for both the individual and their Employer as, besides the implications for tax and National Insurance, it’s the only way to determine what employment rights an individual has.

The guidance was originally published as a PDF, but at the end of December 2019, they were moved to the HMRC’s Employment Status Manual (ESM) website, and they start at ESM4115. The guidance covers sole traders as well as limited companies.

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Guideline differences

There are two main differences in the new Guidance that we can see:

  • The nine-month rule has been completely removed! Previously the Guidance said that “The following workers may be regarded as self-employed, provided they are engaged on a temporary, casual or freelance basis, as long as they are engaged for a one-off production (feature film, single drama or documentary) or for less than nine months on a series or programme strand (HMRC may agree to a longer period than nine months in exceptional circumstances)”. The new guidance gives no time limit (but see the caveats/criteria below)
  • The ‘list of accepted grades’ at Appendix 1, which is a list of the self-employed roles allowed, have been modernised and expanded significantly.

It has also been reported that there are outstanding action points that HMRC will work on before April 2020 (we are not sure what they are, but it has been suggested there will be more changes to Appendix 1). We’ll update this new guidance as we know more.

Who can call themselves self-employed?

The new 2019 HMRC guidance says the following individuals can normally be regarded as self-employed provided either:

  • any criteria listed in column A of Appendix 1 for the specific role is fulfilled, or
  • for those roles marked with an asterisk * in column B of Appendix 1, the engagement is on a “specific production” for a finite period. (‘Finite’ is not defined).

“Specific production” means either:

  • a feature film, single drama, single documentary, commercial or music video, or
  • a single programme or series of programmes, at a specific interval for a fixed term.

Where an individual is engaged for another series

Each time a programme is re-commissioned the employment status of the individual should then be reviewed more thoroughly. HMRC advise that you should consider whether, if the engager re-hires the same person for further engagements, each of those engagements continues to be a separate agreement, or if the parties have created an overarching agreement for a longer-term commitment to each other. See ESM0553.

If the circumstances have changed, you should look at the whole picture and apply the general (HMRC) guidance.

The list of roles in Appendix 1 is not exhaustive. Where a role is not listed it does not necessarily mean an individual is an employee. HMRC and engagers in the industry should use the full range of employment status indicators to decide the status of people not on this list. The HMRC Employment Status Guidance/Manual is at ESM0500.

Short-term engagements

The guidance goes onto say that (regarding short-term engagements) some behind camera individuals may not meet the criteria in the list of roles normally treated as self-employed (for example if they are not providing their own equipment), but they might work on a succession of short term engagements with a large number of different clients.

‘Short’ in this case means 10 days or less.

Where the work patterns and business structure are consistent with the circumstances of the Lorimer case, such individuals can be treated as self-employed. ESM4121.

It can be difficult for an engager to verify such work patterns, the individual can seek confirmation from HMRC that an engager may treat them as self-employed. ESM4110.

For behind camera individuals who do not meet the criteria in the list of roles normally accepted as self-employed, and where the engager has determined their status as employment, HMRC will permit NI only deductions to be made provided that:

  • the individual is engaged for a period of seven days or less, and
  • there are no predetermined arrangements in place for the individual to be engaged frequently or at regular intervals (for example if the individual is to provide their services for the first week of every month).

NI only deductions means that National Insurance contributions are deducted but not tax.

The period of seven days includes rest days and weekends if these fall between the first and last days of engagement. For example, if a worker is engaged for Wednesday, Thursday, and Friday and for the following Monday, Tuesday, and Wednesday, the weekend must be counted and the limit of seven days will be exceeded.

Guidance for engagers

The guidance also says, that from 20 December 2019, engagers should treat individuals who meet these Appendix 1 criteria as self-employed – this applies to new contracts and extension of existing contracts.

Summary of Appendix 1 roles

This is a brief Summary of Appendix 1 Roles (the full list can be found here).

“Roles will normally be treated as self-employed provided specific criteria from either column A or B, or both, are met”:

 

 

 

(These are a selection of jobs in Appendix 1; please refer to Appendix 1 for complete list of jobs)

Column A – Criteria

 

(I have written Etc. where the description continues in the full Appendix 1)

Column B – * Criteria

 

(for those roles marked with an asterisk *, the engagement must be on a “specific production” for a finite period).

Production Role 

 

(I have written Etc. where further related roles are included in the full Appendix 1)

What they do

 

(I have written Etc. where the description continues in the full Appendix 1).

DIRECTOR OF PHOTOGRAPHY Has control over execution of tasks and conducts preparatory work away from engager’s premises * Director of Photography Designs lighting and photography. Responsible for the overall look of the production. ETC.
CAMERA OPERATOR Where the contract requires the provision of substantial equipment to provide the service without increase fee or other payment. * Camera Supervisor

Camera Operator

 

 

 

Etc.

Studio or OB based, senior camera person.  Responsible for the look of the production and management of camera team.

Provides and operates camera equipment, may work to a Director of Photography or camera  supervisor. ETC.

DESIGN
ART DIRECTOR Multiple and/or overlapping clients.  Etc. * Art Director Ensuring designer’s vision is achieved.  Plans, organises and controls the visual aspects of a set.
DESIGNER * Production Designer

Set Designer

Etc. Etc.

Creates physical look and fell of the production.

Designs the look and feel of studio sets.

ANIMATION DIRECTOR Multiple and/or overlapping Clients. Etc. * Animation Director Interpret the brief from the Director.  Etc.
POST PRODUCTION
EDITOR Has control over execution of task.  Etc. * Editor

Etc.  Etc.

Crafts assembled raw footage into coherent editorial story.
ELECTRICAL AND LIGHTING
LIGHTING DIRECTOR Where responsible for designing lighting or photography.  Etc. * Lighting Director

Lighting Designer

Ensures the Designer’s vision is achieved.

Creates the lighting design for a production.

MAKE-UP
MAKE-UP ARTIST Where the contract requires the provision of a standard make-up kit etc. * Makeup Artist

Etc.  Etc.

Responsible for the overall design, application and care of make up during the production.
STORY
WRITER * Writer Originator of script
SCRIPT WRITER Except reporting scripts * Script Writer

Script Editor

Originator of script

Edits original script

SCRIPT SUPERVISOR Where script breakdown is an integral part of the contract * Script Supervisor

Etc.

Responsible for breakdown of scripts into filming blocks etc.
EDITORIAL
PRODUCER Where the majority of the work is not carried out on the engager’s premises. * Producer

Producer/Director

Executive Producer

Etc.

Can be the creator of story idea, responsible for delivering the vision, tone, content and look of the production.  Etc.

Directors are responsible for visualisation of the script and/or the shaping of creative content…. Etc.

Ultimate guarantor of the quality of the production.  Etc.

DIRECTOR * Director

Etc. Etc.

Responsible for visualisation of the script and/or the shaping of creative content.  Etc.
ASSOCIATE PRODUCER Generally self-employed except where engaged primarily for general research * Associate Producer As producer but may also have raised some of the finance for the script/production Etc.
SPECIALIST RESEARCHER Where the individual has an existing profession, specialist knowledge and is engaged for a specific project. * Specialist Researcher Experts in their chosen field Etc.
PRODUCTION MANAGEMENT
PRODUCTION MANAGER Has control over execution of task.  Multiple and/or overlapping clients. * Production Manager Responsible for managing all aspects of production, works closely with editorial colleagues etc.
PRODUCTION SUPERVISOR As above * Production Supervisor Responsible for sourcing, negotiating and hiring film crew etc.
PRODUCTION EXECUTIVE As above * Production Executive Responsible for all aspects of production including budget and schedule, etc.
LINE PRODUCER Has control over execution of tasks.  Conducts preparatory work away from engager’s premises * Line Producer Responsible for all aspects of production including budget and schedule, etc.
AUDIO
SOUND MAINTENACE ENGINEER, SOUND MIXER AND SOUND RECORDIST Where the contract requires the provision of the necessary substantial equipment to provide the service, or… etc. * Sound Maintenance Engineer

Etc.

Maintains sound recording and playout equipment.
THERE ARE ALSO SECTIONS FOR:
SPECIAL FX
COSTUME
RIGGING
OTHER ROLES

There are specific terms used in Appendix 1 to describe the criteria which must be met for the relevant job. See ESM4117 which describes these (which includes ‘Premises provided by the Engager’, ‘Substantial Provision of Materials/Equipment’ and ‘Tools of the Trade’).

HMRC contact details

The Film Production Unit is based at Trinity Bridge House, 2 Dearmans Place, East Wing, 4th floor, SALFORD, GREATER MANCHESTER, M3 5BS and is responsible for engagers in film and TV production, which includes production of TV commercials and corporate videos.

The Film Production Unit can be contacted on 0300 123 2326.

If you are an Employer and need ongoing professional help with any staff/freelance issues, or a Contractor/Freelancer/Employee with a complicated employment related problem, then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small and creative businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

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