Please note that this information is intended for general guidance only; it represents our understanding of the relevant law and good-practice as at January 2020, and was updated on 12th March 2021.
The infamous HMRC’s ‘Film, Television and Production Industry Guidance Notes’, provide advice on who can be self-employed/freelance (as a sole-trader or Limited Company) in these industries.
The old guidance was issued originally in 2003, revised in 2011 and 2012, and 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 contained the all-important list of WHO can legitimately be freelance in these industries.
The original Guidance was published as a PDF, but at the end of December 2019 the new Guidance was moved to the HMRC’s Status Manual (ESM) website, starting at ESM4115.
These updates followed 4 years of cross-industry talks.
There are two main differences in the new Guidance that we can see:
- the 9 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.
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; and/or in the case of re-engagements where an engager rehires an individual in respect of further engagements relating to any specific production, it qualifies as a discrete engagement.
“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, or
- a recommissioned programme is accepted to be a specific production provided that each re-enagement of a contractor is a genuinely seperate agreement, and not part of an over-arching agreement for a longer-term contract.
“Finite Period” means:
- contracting for a specific production where the term of the contract is fixed to a specific deliverable or completion of a specific project, rather than by reference to a defined period of days or months;
- contracting for a specific production on a case by case basis (i.e. a project is started and aborted, and the individual contracts for a seperate and new project with the same company) that each are treated seperately as they meet the definition of “specific production” for a finite period.
“Discrete Engagement” means:
A genuine, seperate engagement entered into on its own terms, and not one where the parties have an overarching agreement for a longer term commitment to each other. Factors which indicate that an engagement is a genuine re-engagement and not part of an overarching agreement can include (but are not limited to):
- there is a period of time between engagements etc.
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.
The Guidance goes onto say that (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 7 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 7 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 7 days will be exceeded.
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.
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 the 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).
(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.
|Where the contract requires the provision of substantial equipment to provide the service without increase fee or other payment.
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.
|Multiple and/or overlapping clients. Etc.
|Ensuring designer’s vision is achieved. Plans, organises and controls the visual aspects of a set.
Creates physical look and fell of the production.
Designs the look and feel of studio sets.
|Multiple and/or overlapping Clients. Etc.
|Interpret the brief from the Director. Etc.
|Has control over execution of task. Etc.
|Crafts assembled raw footage into coherent editorial story.
|ELECTRICAL AND LIGHTING
|Where responsible for designing lighting or photography. Etc.
Ensures the Designer’s vision is achieved.
Creates the lighting design for a production.
|Where the contract requires the provision of a standard make-up kit etc.
|Responsible for the overall design, application and care of make up during the production.
|Originator of script
|Except reporting scripts
|Originator of script
Edits original script
|Where script breakdown is an integral part of the contract
|Responsible for breakdown of scripts into filming blocks etc.
|Where the majority of the work is not carried out on the engager’s premises.
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.
|Responsible for visualisation of the script and/or the shaping of creative content. Etc.
|Generally self-employed except where engaged primarily for general research
|As producer but may also have raised some of the finance for the script/production Etc.
|Where the individual has an existing profession, specialist knowledge and is engaged for a specific project.
|Experts in their chosen field Etc.
|Has control over execution of task. Multiple and/or overlapping clients.
|Responsible for managing all aspects of production, works closely with editorial colleagues etc.
|Responsible for sourcing, negotiating and hiring film crew etc.
|Responsible for all aspects of production including budget and schedule, etc.
|Has control over execution of tasks. Conducts preparatory work away from engager’s premises
|Responsible for all aspects of production including budget and schedule, etc.
|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
|Maintains sound recording and playout equipment.
|THERE ARE ALSO SECTIONS FOR:
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’).
The updated contact details for the HMRC are:
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
Any queries just let us know.
Please note that this information is intended for general guidance only; it represents our understanding of the relevant guidance as at January 2020. We will update the information if anything else becomes clearer!