“…directs attention in the first instance to the services provided by the worker for the client, and then asks whether the circumstances (widely defined in paragraph 1(4) in terms which include, but are not confined to, the terms of the contract forming part of the arrangements) are such that, if the services were provided under a contract directly between the client and the worker, the worker would be regarded as an employee of the client. ”
“they will be based on the contents of the second contract between the service company and the end user, but with the worker himself agreeing that he will provide his services to the end user on, as near as may be, whatever terms are agreed between the service company and the end user.”
“(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.”
“Unless Joanna Gosling sets up a company we need to offer her a 1 year fixed term contract - have just done [a colleague] and agreed£60k sal and 10k - where would you see Joanna fitting in - she may well set up a company”
“When a contract came to an end, I was not sure if I would sign another contract with the BBC. In fact this uncertainty never went away until 2014. There was always the feeling that each year could be my last.”
“ all fees are calculated on the basis of a minimum commitment to provide freelance services for a number of programmes/days over the contract term multiplied by a per programme/day rate. For convenience to both parties, the total fee may sometimes be paid via equal monthly instalments throughout the term, but all payments are for specific programme/day commitments based on the agreed programme/daily rate. If additional services are provided during the contract term the BBC will make further payment at this programme/daily rate upon receipt of a valid invoice.” 59. Working for others and conflicts of interest : (1) It was noted in all of the letters that the PSC/Mr Willcox was required to seek the advice of a BBC representative before entering into any commitment to engage in any work for other BBC departments or to accept any outside work including both print journalism and broadcasting and that the onus was on the PSC to keep the BBC informed (the “ working restriction ”). (2) In the letter of23 February 2007 , it was also acknowledged that as a freelance contributor Mr Willcox would be pursuing other engagements and that, “generally consent is likely to be forthcoming unless there are editorial or conflict of interest issues raised thereby”. (3) In the letter of13 December 2010 it was stated that: “Whilst we have first call on Mr Willcox’ services during any call day, it is acknowledged that as a freelance he is free to pursue other engagements for third parties (including during any call day), subject to this not conflicting with any scheduled BBC commitments .” (4) Attention was drawn in all of the letters to (a) the provisions in the Terms on extra-contractual activities and (b) the Conflicts Guidelines, and a request was made for the Presenter to indicate conflicts of interest and to fill in the declaration form. 60. Editorial Guidelines : In the earlier letters attention was drawn to the Editorial Guidelines, which were not enclosed but it was stated that a copy could be sent if requested or obtained from the line manager. In the letter of21 July 2008 it was noted that the Editorial Guidelines were available on the website, that it was “a condition of engagement” that “you read them and agree to full comply with them” and “sign a declaration (enclosed) to warrant that you have done so” (and it was noted that compliance was required with other guidelines that may be communicated by the BBC from time to time) and that “all freelance contributors for the BBC are required to complete Editorial Standards training” (the “ guidelines provision ”). There was a similar provision in the letter of13 December 2010 but with no reference to training. 61. Insurance : In the letter of13 December 2010 it was stated that as Mr Willcox is a “freelance contributor supplied by the Company” the BBC does not provide insurance cover (save for a purely discretionary No-Staff Accident Benefit Scheme). It was noted that “the cover available is limited” and it was, therefore, “the responsibility of the Company and/or Mr Willcox to ensure that he has adequate personally arranged insurance appropriate for all his needs” (the “ insurance provision ”). Contracts relating to World 62. The first two contracts with World were sent to TWL under covering letters dated26 January 2009 and9 October 2009 respectively to which the terms of trade were attached (in a substantially shorter and less detailed format than the Terms applicable to the other contracts). Each of the letters/contracts contained the following terms/explanation of the terms: (1) It was stated that the BBC would call on Mr Willcox’ services as required for a fee payable per shift which “will only be payable for work actually undertaken”
“an obvious thing. I mean, I wouldn’t go and talk at a lobbying group ….[or] get involved in something which was politically controversial or for a particular lobby group ……I think I went through it far more carefully, as far as my own career work was concerned as opposed to as regards relatives and others”
“ In the event of the Company failing for any reason to render the services of the [Presenter] under this Agreement the payment shall (unless the BBC otherwise decides) be reduced by an amount proportionate to the period during which the Company failed to render the [Presenter’s] services ”. (2) Whilst negotiations were on-going for a new contract, the BBC confirmed in a letter dated9 August 2010 that they wished to extend the second contract from1 August 2010 to30 September 2010 for a minimum commitment of 35 days and for the same fee as previously. Ms Gosling signed this on19 August 2010 as corrected manually by her to refer to 24 days (as a proportion of the annual minimum commitment of 149 days). (3) The final contract in the relevant period was dated5 November 2010 for (a) two years from1 November 2010 to31 October 2012 , (b) a “minimum commitment” of 161 days in each year and (c) a contract fee of£106,311 each year which was stated “for the avoidance of doubt” to be “ calculated on the basis of a daily rate of [£657 ] per day “multiplied by the number of days your services are required” under the minimum days and£657 for additional days. (4) After the relevant period, the parties entered into contracts (a) for the period from1 November 2012 to31 October 2013 for a minimum of 161 days and (b) dated7 November 2011 for the period from1 November 2013 to30 April 2014 for a minimum of 81 days (in each case for fees calculated on the same basis as in the previous contract). 67. Ms Gosling said that during the contractual period starting on1 August 2006 the BBC asked her to work more days which she was happy to do so. However, the BBC later tried to re-negotiate the fee when she was pregnant with her child who was due in early 2008; the BBC wanted her to return after a period of leave at a reduced fee. This was resolved when, in a letter of14 December 2007 , the BBC wrote to PL confirming that there was no need for a change in terms on the basis that Ms Gosling did not work and was not paid for three months and “our mutual agreement to suspend the existing contract” dated7 July 2006 from1 January 2008 “until such time as the parties may mutually agree”. 68. There was a prolonged delay in concluding the second contract due to Ms Gosling disputing her pay and terms. The BBC offered her increased days but at a reduced daily rate representing, as she calculated, a 25% pay cut. During this period whilst Ms Gosling carried on working the BBC stopped paying her for a time although she could not remember for how long. From the correspondence in the bundles, we conclude that payment was delayed in respect of one month. In an email to Ms Beckett on12 December 2008 Ms Gosling said, it appears referring to the payment for November 2008, that as she had just received a payslip in the post, the fee was obviously on the way. She asked for Ms Beckett to make sure her December payment was not delayed. On15 December 2008 Ms Beckett confirmed that the November fee had been paid but she said that she needed “a signed contract before further payments can be made” and that this why the November fee was delayed. Ms Gosling responded to the BBC on the same day that she could not sign a contract until settlement was reached and : “ This also follows my November payment arriving a month late because of similar issues…….Since my discussion with you, I have become increasingly aware of varying rules for presenters, especially around the unwillingness of those who are staff to do the more antisocial shifts, like the evening. I can detail this if necessary. The fact that as a freelance presenter, my terms and conditions are dramatically worse than for staff, compounds my feelings about this.” 69. On19 December 2008 the BBC confirmed that they could agree a contract based on 149 days per annum at the rates set out above. The BBC said that at the end of second year any increase “will be based on your rate and not fee” and confirmed they had arranged payment of the fee for December. It was noted that they would “obviously need to adjust your payments from January to August” and that as to date they had paid ££9,461 per month, that “leaves£68,503 payable during the period January 2009 to July 2009 (£9,786 per month)”. 70. Ms Gosling replied on22 December 2008 that she wanted to be sure that the BBC was not suggesting that her daily rate became her contracted rate from 2010. On29 December 2008 Ms Beckett replied that for all freelance contributors the daily rate is the contracted rate and any increase is normally applied to this and that the actual fee is based on the number of days the BBC calls on the freelance to provide their services. From a later email chain in 2010, Ms Gosling set out how at this time she tried to clarify the above wording repeatedly but “your answers became more opaque, so we did have a conversation in which I made absolutely clear that I would not agree a position where a£657 day rate would be the baseline for negotiations two years down the track”. 71. Ms Gosling said that this email exchange is illustrative of how things were at the time. She had always wanted to be a staff presenter at the BBC. She was frustrated because “I was out of contract, the contract negotiations were brutal, so it was going on for a long time. And I wasn’t being paid for the work until...it sort of felt like until you sign the contract, which…..felt like a fairly forceful thing to do”. 72. She was working alongside presenters who were staff presenters and by comparison she felt pretty hard done by, vulnerable and unvalued. She felt that as a freelance, she was being treated differently. She did not know if the next contract would be agreed; there was no guarantee. She had pay cuts, no pension and had three children with no maternity leave. Other presenters had mobile phones and one even had a company car. She felt like a lone ranger and not like she was part of the fabric of the BBC because she was not treated like that. So it was not just the benefits “it is the whole way you feel. You feel very vulnerable”
“By your signature, you warrant and undertake that you have read and understood and will at all times comply” with them. The remaining letters contained provisions which were substantially the same as the editorial provision but without the reference to editorial training in the last three letters. (4) Insurance : In the letter of30 October 2007 it was noted that the primary responsibility for insurance was for the PSC/Mr Eades and that a note explaining the position was enclosed. The letters of30 October 2009 ,28 January 2011 and11 July 2011 included provisions which were substantially the same as the insurance provision. 82. Mr Eades was generally sent inducement letters and declaration of interest forms in a similar form to those sent to the other Presenters. All the inducement letters provided in the bundles (from 2007 onwards) stated that he agreed to comply with the Editorial Guidelines (and some of them stated that he would comply with such other editorial policies as advised from time to time) and most stated that he would make himself available to complete editorial training. In the later letters (from 2010 onwards) he was required to acknowledge that he was not an employee of the BBC. The Terms 83. Under the Terms the BBC, the relevant PSC and the Presenter had the following main entitlements and obligations. Services, control and good faith 84. In the 2004 terms the PSC (referred to in the Terms as the Company) warranted that: “The Company controls the services of the [Presenter] and agrees to place the same at the service of the BBC in accordance with the terms and conditions of the Contract... … [it] shall, and it shall ensure that the [Presenter] shall, during the Contract Period, act in good faith towards the BBC and in such manner so as not to prejudice the Services or to bring the BBC into disrepute or cause a conflict of interest to arise and the BBC shall act in good faith towards the Company and the [Presenter]”. 85. The 2007 Terms contained similar provisions to those in the 2004 Terms but there was no good faith obligation on the BBC. In both of these sets of Terms the “Services” were defined as the services to be provided by the Presenter as specified in Part B. In the 2004 Terms the PSC agreed to ensure that the Presenter would: “attend such programme promotion activities as the BBC may require….” and “if requested, attend BBC News Training Sessions as a specialist guest” on not more than two days per year. 86. In the 2012 Terms it was provided that the PSC (a) “controls the exclusive services of the [Presenter]” and (b) agrees to “procure and provide the [Presenter’s] non-exclusive services to the BBC, as required under this Contract…”
“(a) preparation and appearing in and out of vision (b) creative input for content production (such as researching, writing and editing the [Presenter’s] own written contributions/blogs any other associated content and revising it as required at the Company’s own cost and in the Presenter’ own time) (c) travel as deemed reasonably necessary by the BBC (d) press, promotion and trails, and (e) such other services as are usually provided by a professional first class presenter as required for the Minimum Commitment and all associated output for the BBC Output Area”
“In consideration of the Company making the [Presenter] available during the Contract Period to provide the Services in accordance with the terms and conditions of the Contract, the BBC shall pay to the company, the Fee”
“In consideration for the provision of the Services of the [Presenter], for the rights granted under [the copyright provision], and all consents and waivers given pursuant to this Contract, the BBC will pay the Company the Fee subject to compliance of the Company and the [Presenter] with all obligations in this Contract.” 88. As regards payment of fees and invoicing: (1) In the 2004 Terms it was stated that: “Subject to [the provision set out at [95] the BBC shall pay to the Company the Fee which, if applicable, shall be payable in the manner specified in Part B of the Contract on presentation of an invoice.” (2) In the 2007 Terms, it was stated that (a) invoices must be provided for payment of the total Fee in equal monthly instalments in arrears, (b) the BBC was to pay promptly on presentation of an invoice and in any event within 30 days but the monthly instalments were to be paid no later than 14 days after the end of the relevant period (subject to the BBC having received a signed agreement) and (c) the PSC was not able to claim payment in respect of additional days until the Presenter “has fully completed the Minimum Commitment [in which case] the Presenter may thereafter invoice for additional days at the stipulated rate”. (3) The 2012 Terms contained provisions similar to those in the 2007 Terms but it was stated that if the BBC required the Presenter “to exceed the Minimum Commitment he/she will be entitled to invoice the BBC at the rates specified…at the end of the Term”. 89. In all sets of the Terms the “Fee” was expressed to be exclusive of VAT. 90. In both the 2004 and 2007 Terms the above payment provisions were subject to the following provision entitling the BBC to withhold payment in certain circumstances with minor differences in wording, which are shown in square brackets as regards the 2004 Terms and, as regards the 2007 Terms, in italics: “ The BBC reserves the right to ….withhold payment against any VAT invoice which is not submitted in accordance with [the above provision in [92] above] or which covers or purports to relate to any of the Services which have not been provided [in accordance with the Contract] [ as required under this Agreement ] and the BBC Representative shall notify the [Company Representative] [ the Company ] accordingly in writing. Any such action taken by the BBC under this sub-clause shall be without prejudice to any other rights which the BBC may have under [the Contract][ this Agreement ].” 91. In the 2007 and 2012 Terms there was a further provision entitling the BBC to reduce the fee for the services as follows: “In the event of the [Presenter] failing for any reason to render services under this Agreement the payment shall (unless the BBC otherwise decides) be reduced by an amount proportionate to the period during which the [Presenter] failed to render services” (2007 Terms) “ If the Company fails for any reason to procure the delivery of the Services of the [Presenter], the BBC will be entitled in its absolute discretion to reduce the fee by any amount proportionate to the period during which the [Presenter] failed to provide the Services (or any part thereof) and/or the value of such of the Services not provided, as appropriate.” (2012 Terms) Expenses 92. In the 2004 Terms the PSC was entitled to reimbursement of the Presenter’s “reasonable travel and subsistence expenditure incurred in providing the Services together with [VAT] or similar tax” and the parties were to agree in advance, the level of such expenditure. 93. In the 2007 Terms it was provided that the PSC was required to meet all expenses (including travel, subsistence and clothing) incurred in the provision of the services and the fee was deemed inclusive of all expenses unless (a) certain expenses were permitted under a formal expenses policy such as for very early or very late provision of services or where the Presenter was required by the BBC to travel overseas or (b) where “exceptionally”, specific expenses were agreed in advance of their being incurred by the BBC Representative which must be reasonably incurred directly in providing the services and of a reasonable amount. 94. In the 2012 Terms, the Fee was stated to be “inclusive of all expenses unless specific expenses have been agreed by the BBC Representative in exceptional circumstances only and in advance of being incurred by the Company or the [Presenter]”. 95. In the BBC’s expenses policy document applicable to freelance news presenters it was stated that if the BBC required a freelance to undertake travel a significant distance away from their home or usual BBC base it may be appropriate for the BBC to arrange and pay directly for suitable travel and/or accommodation or meet the cost of such travel or accommodation (in which case the BBC may also meet subsistence/meal costs). Performance of services 96. In the 2004 Terms the PSC was required to ensure that in providing the services the Presenter would: “(a) possess all necessary skill and experience (b) use all proper care, skill and diligence (c) execute and complete the Services in a timely, efficient and professional manner as is necessary for the proper performance of the [Presenter’s] obligations under the contract.” 97. There were similar provisions to those in [96] in the 2007 Terms. In the 2012 Terms the PSC agreed to procure that in providing the services the Presenter would “possess all necessary skill, ability, knowledge and experience”, “use all proper care and diligence” and “execute and complete the Services as a first class presenter conscientiously and in a professional manner at all times, fully and willingly comply with such requests as may be made by the BBC in connection with the Services.”
“The [Presenter] shall be issued with a contractor’s pass which he/she shall keep on his/her person at all times whilst on BBC premises…and shall be surrendered by the [Presenter] to the BBC upon expiry of the Contract… The BBC Representative shall afford to the [Presenter] at all reasonable times and with prior agreement between the parties such facilities and access to BBC premises as the Company reasonably requires for the provision of the Services.”
“ The BBC shall be entitled not to use the Services or any part thereof and neither the Company nor the [Presenter] nor the personal representatives of the [Presenter] shall have any claim for loss of publicity or otherwise as a result thereof beyond a claim for payment of the Fee in full”. 106. In the 2007 and 2012 Terms, there was a similar provision as in (2) above and to that in (3) as follows: “ The BBC shall not be obliged to call on the services of the [Presenter] hereunder or to use all or any of the [Presenter’s] contributions and if it does not do so it shall not be liable to the Company or the [Presenter] for any loss or damage suffered by the Company or the [Presenter] thereby or any failure to obtain publicity, or any opportunity to enhance the reputation of the [Presenter] PROVIDED HOWEVER THAT the BBC shall nonetheless, be obliged to pay the Fee in full (subject to any other provisions to the contrary).” (Taken from the 2007 Terms but the wording in the 2012 Terms is not materially different except that it refers only to the BBC being obliged to pay the “Fee” as opposed to the “Fee in full”) Editorial Guidelines 107. In the 2004 Terms the PSC was required to “discharge its obligations under the Contract in such a manner as to observe the BBC’s general editorial policy as notified in writing or otherwise by the BBC to the Company Representative from time to time.”
“..the Company agrees and will procure that the [Presenter] will read the [Editorial Guidelines] and any Guidance (up to date copies of which can be found on bbc.co.uk) or any revisions or replacements…will comply fully with [the Editorial Guidelines] and Editorial Guidance… the BBC’s Values, any other editorial policies and other BBC guidelines and policies as may be advised to the Company and/or the [Presenter] by the BBC from time to time, and any applicable codes from the Office of Communications or any regulatory body or bodies that may replace it……)” 108. In the 2007 and 2012 Terms it was “acknowledged that the BBC’s editorial control [of its content] is final”
“….the Company hereby assigns to the BBC absolutely the complete copyright in the products of the Services of the [Presenter] in all languages throughout the Universe .... and warrants that the [Presenter] has assigned the same absolutely to the Company… The Company warrants that nothing contributed by the [Presenter] under the contract shall: ……(b) contain anything which constitutes an infringement of copyright or is defamatory or is calculated to bring the BBC into disrepute but neither the [Presenter] nor the company shall be liable in respect of any defamatory material which was included without negligence or malice by the [Presenter]…. The Company grants to the BBC the unlimited right to edit, copy, alter, add to, take from, adapt or translate the products of the Services of the [Presenter] and with regard to those products and any programme in which they may be incorporated and hereby warrants that the [Presenter] has waived irrevocably the benefits of any provisions of law known as “moral rights”….” 110. The 2007 and 2012 Terms contained similar provisions as set out in [110] but as regards defamatory material in each case without the proviso for material included without negligence or malice by the Presenter but on the basis that the relevant warranties did not apply to any material included at the instance of the BBC. Extra-contractual Activities 111. The 2004 Terms contained the following restrictions on the Presenter’s activities: “….the Company shall ensure that the [Presenter ] shall not during the Contract Period: (a) engage in any public controversy; (b) undertake any extra-contractual activity liable to prejudice the editorial impartiality of the BBC and the [Presenter ] shall discharge his/her obligations under the Contract in such a manner as to such guidance on extra-contractual activities as may be given by the BBC to the [Presenter ] from time to time whether in writing or otherwise… …….the Company shall ensure that the [Presenter ] shall not without the prior written consent of the BBC during the Contract Period : ( a) contribute to or be associated with any audio and/or visual material (other than the BBC’s) generally disseminated to, available to, or accessible by the public anywhere in the World, by any existing or future means ...; (b) write for publication or speak in public about the BBC or its affairs; (c) undertake other than for the BBC (including the ways set out in (a) and (b) above if and where consented to by the BBC) any extra-contractual activity using the name [BBC]… or the name of any BBC programme or other BBC entity and the Company shall ensure that all other parties similarly agree to be bound by the provisions of this sub-clause… In this regard the [Presenter ] agrees to notify the BBC Representative in confidence of any commercial business or financial interests which might reasonably be considered to influence the services provided ….or which are connected to the subject matter of any programme to which the [Presenter ] contributes.” 112. Under the 2007 Terms, the PSC acknowledged that the BBC (under its Agreement with the Secretary for State for Culture Media and Sport) has given certain undertakings in relation to Programme Standards including in particular impartiality and: “….the Company…agrees ….that the [Presenter ] will not: (a) engage in any public controversy; (b) include in any contribution for the BBC hereunder remarks or interjections which the BBC has asked or may ask the [Presenter] to avoid; (c) engage in any conduct which compromises or calls into question the impartiality or integrity of the BBC or its programmes or its ancillary content (such as webpages) or the [Presenter ]; (d) be publicly associated with the work of any government initiative or with campaigning or lobbying or with a political party (without prior written consent of the BBC Representative); (e) write for publication or speak in public about the BBC or its affairs in a manner which could reasonably be considered disparaging of the BBC or of any of its programmes News sites contributors or staff or which would otherwise call into question the integrity of the [Presenter] or the BBC or any of its programmes News sites contributors or staff; (f) be involved in the promotion of goods or services (whether through advertising endorsements public appearances corporate videos public relations work or otherwise) without the prior written consent of the BBC Representative; In this regard the Company agrees to notify the BBC Representative in confidence of any commercial business financial or charitable interests which might reasonably be considered to influence the services provided ….or which are connected to the subject matter of any BBC output to which the [Presenter ] contributes. During the Term the [Presenter ] shall not without the prior written consent of the BBC Representative: (a) provide services of any kind to any media outlet accessible by the public anywhere in the world; (b) undertake other than for the BBC any extra-contractual activity using [the BBC name]..or the name of any BBC programme or other BBC brand. However, generic descriptions such as “broadcaster” and “newscaster” are acceptable.” 113. The 2012 Terms contained the following restrictions: “..the [Presenter] will not without the prior written consent of the BBC Representative provide services of any kind for any form of visual or audio content primarily intended for audiences in the [UK] and the Republic of Ireland (or interactive and internet-based services anywhere in the world) for any party other than the BBC. For clarity BBC consent is unlikely to be given for any services for third parties which could reasonably be considered to be in direct competition with the Services, or which would otherwise conflict with the BBC’s Standards, when the BBC requires the Services to be provided, and/or any scheduled communication to the public of the content to be made hereunder. Neither the Company nor the [Presenter] will allow any form of publication of written material for a party other than the BBC in certain circumstances, [broadly, including if the Services provided are either primarily for News output or otherwise primarily journalistic in nature without first obtaining copy approval from the BBC Representative (which was not to be unreasonably withheld)]. The Company acknowledges that the BBC’s reputation for impartiality, integrity, independence and decency (referred to hereinafter as the BBC’s Standards) is fundamental and agrees that the Services provided by and the activities and conduct of the [Presenter] must not compromise or call into question, or be perceived to compromise or call in question, any of the BBC’s Standards.” 114. In the 2012 Terms there was a provision similar to that above requiring the PSC to give notice of commercial, financial or personal interests or activities (including the interests or activities of any closely connected persons) but with greater specificity, in providing that this applied where the interests: “(a) relate to editorial decisions with which the [Presenter] is likely to be involved; (b) relate to the subject matter of any content to which the [Presenter] is likely to be involved; (c) could otherwise be perceived to give rise to a conflict of interest on the part of the [Presenter] or the Company; (d) could otherwise be perceived to influence or otherwise affect the Contributions, editorial decisions or the BBC’s Standards.” 115. In the 2012 terms, the PSC agreed (a) that the Presenter “will not be involved in product placement in any BBC content where the Company or the [Presenter] have any interests in such product(s), or use, wear, or otherwise promote their goods, services or personal interests via any BBC content” and (b) neither it nor the Presenter “will make any use or reference to their association with the BBC, or any BBC content in any commercial, political or campaigning context”. 116. In the 2012 Terms the PSC agreed to procure that the Presenter would “complete such editorial training as the BBC may from time to time require” and would not: “include in any of the Contributions remarks or interjections that the BBC has asked or may ask the [Presenter] to avoid; behave in a manner, or permit themselves to be associated in any way which does or could bring the Company or the [Presenter] into disrepute …..or which could otherwise bring the BBC or any BBC content, into disrepute or which is likely to make the BBC, the Company or the [Presenter] subject to sanction by OFCOM; engage in any conduct or interests which do or could compromise or call into question the impartiality or integrity of the BBC or any BBC content, or the [Presenter] and, in particular without limitation, neither the Company nor the [Presenter] will, without the prior written consent of the BBC Representative: have a personal, financial or business interest in any legal person…which has a trading relationship with the BBC….; provide media training (such as coaching in how to be interviewed); be publicly associated with the work of any government initiative; be publicly associated with campaigning or lobbying for any campaigning organisation (including charities or political parties); publicly express personal opinions or advocate any particular position on matters of public policy, or political, social or industrial controversy or other controversial issues (other than professional opinions, if applicable, which must always be given with due accuracy); publish statements about the BBC; promote goods or services, whether through advertising, endorsements, public appearances, corporate videos, public relations work, or otherwise…….”
“The Company shall not without the prior written consent of the BBC, assign, transfer, charge or deal in any other manner with the Contract or any of its rights thereunder ... nor subcontract any or all of its obligations under the Contract.” 123. In the 2012 Terms the assignment provision was amended with a proviso that: “However, the Company will be entitled to nominate and provide an alternative [Presenter] in exceptional circumstances where the [Presenter] is not available for reasons beyond their reasonable control (not including suspension hereunder) subject to reasonable prior notice being given to the BBC Representative and such alternative provider being deemed suitable and being approved by the BBC Representative for this purpose…” 124. In the 2004 Terms there was an additional information note which stated that the BBC was not responsible for personal accident sickness and life insurance but that the BBC operated a Non Staff Accident Benefit Scheme details of which have been supplied to the Presenter which was designed to provide limited financial assistance in certain circumstances.” 125. In the 2004 and 2007 Terms there was a statement that the agreement (being Part A and Part B) constituted the entire understanding between the parties with respect to the subject matter of the agreement and “supersedes all prior arrangements negotiations and discussions between the parties relating thereto”
“Many of the guidelines are advisory, but some are mandatory and have the force of instructions…So please read the guidelines and keep them by your side as you work …” (2) The 2010 version was described by the Chairman of the BBC, as “one of the most important documents the BBC publishes” which “set out the standards required of everyone making programmes and other content for the BBC”
“Care must be taken to ensure that they remain impartial when speaking publicly…..and do not promote any political party, campaigning organisation or lobby group which may jeopardise their status as an impartial broadcaster. The chairing of conferences may well be acceptable, but it is essential that the conference is not a promotional exercise or one-sided, on an issue of public controversy”
“BBC people, freelances or presenters clearly associated with BBC programmes should not speak or write publicly about the BBC without specific, prior approval……Presenters…should not train people they are likely to interview ……Presenters involved in News, Current Affairs….should not interview anyone they have trained and it is very unlikely that it will be acceptable for producers or editorial people in these areas to undertake any outside coaching on how to appear on air.” (6) “Presenters….in news, current affairs…. should not normally associate themselves with any campaigning body, particularly if it backs one viewpoint in a controversial area of policy. It is unlikely to be appropriate for a news presenter to front a campaign for a charity or a campaigning body…” (7) Personnel including freelances and independent production companies were required to declare any commercial interests which may impinge on their work with the BBC. (8) “Presenters and reporters on news, current affairs and business programmes are not permitted to take part in any promotions, endorsements or advertisements for third parties.” 129. The BBC also published additional Off-Air Notes in May 2006 which contained similar provisions to those in the Conflict Guidelines but with greater detail for those known as news presenters. The 2005 version of the Editorial Guidelines did not contain provisions on conflicts of interest but they were included in the 2010 version. As Mr Jordan explained, the BBC discovered that on many occasions people were misinterpreting what they could and could not and should not do, which was compatible with their status within the BBC and “we brought it back so that people would realise the seriousness of it, as part of the overall commitment to values and standards in the BBC”. 130. As Mr Jordan explained, underpinning the Editorial Guidelines are the BBC’s editorial values which set out, at a high level, the standards that the BBC as an organisation and those who work with it and for it are expected to embody including, trust, truth and accuracy, impartiality, editorial integrity and independence. Of particular relevance in a news context are due accuracy and impartiality. For example, the 2010 Editorial Guidelines state that: “News in whatever form must be treated with due impartiality, giving due weight to events, opinion and main strands of argument…Presenters…are the public face and voice of the BBC - they can have a significant impact on perceptions of whether due impartiality has been achieved… Our audiences should not be able to tell from BBC output the personal prejudices of our journalists or news and current affairs presenters on matters of public policy, political or industrial controversy or on “controversial subjects” in other areas…” 131. In the section on impartiality in those guidelines it was noted that the external activities of presenters can affect the BBC’s reputation for impartiality and therefore that section should be read in conjunction with the section on conflicts of interest. It was stated in the introduction to the chapter on conflicts of interest that the principles set out “apply equally to everyone who makes our content” and that all BBC staff had to formally declare any personal interest which may affect their work with the BBC as did freelance presenters and reporters (as well as others). Again specific restrictions applied to those known as news presenters or working in news which were similar to those set out in the Conflicts Guidelines. 132. The Editorial Guidelines advise and sometimes proscribe that certain matters must be referred to others within the BBC, such as more senior editorial figures, the Editorial Policy team or experts elsewhere or to the legal team. The circumstances in which mandatory referrals had to be made include the following: (1) As regards the reporting of serious allegations in a live unscripted “two way”, that “it must be the editor’s decision as to whether [live unscripted two ways] are an appropriate way to break a story”
“ try to implement the BBC’s values by giving expression to them in a principled and practical way, which is why [they] are more substantial than some others, because they show people the best practices that can be adopted. That doesn’t mean to say they are the only practices that can be adopted, and judgments need to be made all the time about what is the best way of realising our objective of getting output and content on air which……is the best we can possibly do, creatively and qualitatively but also, is the best that we can do in terms of our own values.” 136. He continued that they are intended to be: “an aid to programme makers, to help them negotiate the more difficult aspects of programme and content making in the BBC and sometimes to offer guidance. They are…rarely intended…to be outright instructions because there are always different ways of doing things, but they offer a guide as to how to negotiate some of the more difficult ethical issues that we face in putting our content on air.” 137. He said he would be concerned if presenters were to say they had never read them at all but that “clearly, in many instances, particularly with experienced presenters, in effect…they are dealing with the currency of the Editorial Guidelines throughout their careers, so to some extent this is a common currency across the UK broadcasting scene”
“that people are kind of referring everything, every moment, to some higher authority because they don’t. And they can’t. I mean in the live studio, for example, you can’t possibly be referring all the decisions that you are making. You have to - presenters, in particular, are - it is a very lonely job in many respects. Although you are surrounded by people, you have to be making countless numbers of decisions all the time, phrasing things perfectly, doing things in the right way in the context of the Editorial Guidelines, in the context of the legal framework in which journalism works and so on and so forth. You are making dozens and dozens of decisions which could, ultimately, if they are not made properly…rebound to the disadvantage of people higher up the editorial chain who will be held responsible and that is a great responsibility and that applies also, to other people who contribute to the production process.” 141. He continued that “it is a much more difficult process if you are dealing with live output” which “to some extent, has to be done on the hoof”, and “it relies a lot on the judgment being made at the moment that you are doing it, because clearly, you can’t refer every question you are going to ask or every line you are going to utter, up to anybody in your line management chain, never mind the director general. So a lot of the responsibility rests with the people, with live output, to make those decisions themselves.” 142. He thought that making such decisions is a collaborative exercise but at the end of the day, the editor is responsible and the editor will, at times, have to make a decision, just as a presenter will have to make a decision because they are confronted with the situation as to what questions they are going to ask a particular individual that they are interviewing live on-air. It is a collaborative endeavour which sometimes requires individuals to take large scale responsibility and make decisions which are quite difficult. If collaboration breaks down, the ultimate line management responsibility lies through the editor (rather than producer) and, thereafter, up through the editorial chain of command as he had described. 143. It was put to Mr Jordan that the Editorial Guidelines set the standard in terms of the BBC’s output by which behaviour can be judged and he said “what we are concerned with is what appears on air or on screen or online…..the output and the content….They set the standards by which our output and our content can be judged”
“I was being given paperwork that I had to sign. I negotiated contracts for me, as somebody that wanted to do a job. It was not easy negotiating contracts and the thing that I was concerned about was, firstly, whether I would get another contract, how many days would be in a contract, and what the fee would be. So when the paperwork came through, it was a relief that the terms had been concluded and I would just sign whatever was there. Which I recognise is…probably pretty naive, but that is the truth.” 151. Ms Gosling said that she did not read this sort of detail as regards the BBC pointing out the Editorial Guidelines in the covering letters. It was fair to say “I just assumed nothing was changing. I was doing the same job. I am a journalist”
“I was accepting a contract with myself through the BBC because the BBC had insisted the only way of using me as a freelancer was through a PSC…I was being contracted on freelance terms by the BBC, through a [PSC] which they had asked me to set up”
“I was being paid to do a job and… it had to go into a company and the company was being run by accountants”
“No, I need three days off for family”, or something, there’s no requirement to do the [minimum] days, first of all, no.” 169. Mr Eades said that while World was the main provider of work for him, he frequently pointed out that he was not available for certain days once he was given a list of the days the BBC wanted him for. Most of the time this was done by email with the rota producer. Discussions were friendly and cordial in tone and rarely involved any friction. He made it clear when he was not available usually a month in advance and, in that case, may provide the name of a colleague who could do the shift. Sometimes he only gave short notice of his unavailability, on occasions only one or two days. In those cases, both sides were as flexible as possible. He would try to help as far as possible by covering any other shortfall that arose in covering a presenting shift. 170. The Presenters’ evidence is supported by a number of emails in the bundle which record that both Mr Eades and Mr Willcox emailed the rota manager turning down or cancelling a shift with little or no explanation and sometimes on short notice. For example, this occurred when Mr Eades’ mother was unwell, where he simply said he had to be somewhere on the particular day and where he had a mix up with his holidays. Sometimes he offered a replacement but on other occasions the rota manager simply agreed to replace him. 171. In response to questions on whether he had to keep an eye on fulfilling the minimum days, Mr Eades said there could be times when the rota manager would be thinking, “I’m really stuck here. I’ve got nobody to turn to” and “would need me to do it and I would hunt high and low for a replacement”
“naively at the time, I believed that those days were guaranteed days of work, and that really was the thing I was looking for”
“perhaps the one thing I could offer was to be a flexible, available at all times… and I made that clear to the BBC, that I would take a call at two hours before having to go on air…..So my USP was to be flexible and available, which meant that even though there was a certain number of days here, it didn’t really apply to me because I always knew that if they thought I was the person who would respond and come in, I would.” 175. He thought that this flexibility put him “into a position to be valuable to the BBC as a freelancer who would come in and work, when people, perhaps who were staff, wouldn’t”
“The one thing that most TV editors and people in positions of power agree on is that they never agree on who is a good presenter and who is the right person to be on the screen. As such, one is constantly at the whim of any new particular programme editor or person who comes in. It might be something as simple as somebody having a double-barrelled name and somebody saying on the 10 o’clock news, "I don’t want somebody with a double-barrelled name on the 10 o’clock news". It is the most whimsical, ludicrous, precarious business, where actually, a lot of journalistic integrity doesn’t count for as much as what seems to be right and looks right at the time. So in terms of a number of days being offered, I was always aware that once those days, perhaps, had been used up, it might be that that would be the reason - I don't want to sound paranoid, but that might be the reason why one wouldn’t be used again.” 176. He said that there had been several occasions over the years where he had had calls before going on air from managing directors at the BBC, who said: “I just wanted to warn you that we have taken on this particular person and as a result, the amount of work for you will be significantly impacted”
“I did as many shifts as I was offered….there were certainly periods of time when I was not offered more work or where I couldn’t… do more work”
“I see that, but I feel like I’m coming back to the same point that I’m trying to make, which is, if the BBC offered a minimum commitment within a contract, they’d have to offer that minimum number of days, fine. But if I have been going back and forth with our rotas producer on who is offering what and when…..it’s not that simple,…..It’s not that clear. I still can’t say to you now, I know that if Sharon only gives me one day this week, she’s actually considering that that’s three days, in a sense, that she could have given me and she’s only given me one…..She’s probably thinking, "I might give him another one down the track", or whatever, "and we will see where we get to at the end of the path". Hypothetically this is, because I think I have, every year, notched up the number of days, which has varied considerably over the years…… in the warp and weft of a year of days working, shifts working, maybe two shifts one day, none for a week, et cetera, et cetera, there isn’t…it doesn’t fit as clear a scenario, I think, as you paint.” 188. It was put to him that he meant that there may be a factual question in relation to any particular occasion as to why an offer of work was either not made at all or, if it was made, it wasn’t accepted. He replied: “Which would lead to a discussion, which would be one which would ultimately be a negotiation, I suspect, with the BBC, as to whether they’re going to pay me or not.”
“[ Mr Willcox] would not have been paid for the days unfulfilled”. 190. It was pointed out to Mr Willcox that Mr Bakhurst is recorded as continuing to state that: “The presenters worked closely with the team, managing the rotas. As such, it was highly unlikely that any presenter would have undershot the agreed figure without prior arrangement. Individuals such as Mr Willcox would have worked far more than they had, if more shifts could have been offered to them.” 191. It was put to Mr Willcox that, in the light of these comments, Mr Bakhurst was addressing only the case where TWL did not make him available for the minimum days. Mr Willcox said that was not how he interpreted the note. He had thought that he had a guaranteed number of days, and he subsequently found out, from this note, that he did not. We consider that this is a misunderstanding of the relevant comment. Viewed in the context of the entirety of Mr Bakhurst’s response, it appears that he was referring to the situation where Mr Willcox did not work the minimum days due to his unavailability. 192. We note that there is a record of statements in other notes that other senior personnel at the BBC considered that the BBC did have an obligation to offer work for at least the minimum days. In a note of a meeting which took place on13 September 2012 between various individuals at the BBC, including Ms Beckett and Ms Hockerday, the head of BBC News, Mr Smith and Mr Andrew Roy, the head of World, and HMRC officers it was recorded that: “ In line with the minimum guarantee, if the BBC offered a minimum commitment within a contract, they would have to offer that minimum number of days. However, if the programme was stopped or changed, terms would be renegotiated. Mr Eades was specifically offered a minimum of 184 days.”
“There was a minimum guarantee expectation that the BBC offered and the individual accepted. At the point an individual was not able to make the minimum commitment the BBC would adjust the contract”
“no more than a combination of common sense, journalistic integrity and the Ofcom code and that the values are true of everyone working in the industry, whether in TV or radio. These are principles I would abide by whether working freelance with the BBC, ITN, Sky or anyone else”. 225. Mr Eades said that the Editorial Guidelines acted as a background framework to the role of presenter which requires in any event “the need to be impartial and the need to take great care with what is said in a live broadcast”
“ is all very standard broadcasting - understanding ethical practice…I wouldn’t do that for any broadcaster…I wouldn’t do it as a journalist. I wouldn’t do it as me….This is not in my DNA…The idea that this is something the BBC insists upon or not, feels close to irrelevant to me. I would expect as a journalist to follow journalistic standards…” 226. It was put to Mr Eades that the Guidelines contained extensive restrictions on the freedoms that an individual would otherwise possess. He agreed but said that it would be the same if he were at Sky or ITN, Channel 4 News or Channel 5 News. They merely contained the restrictions he would expect to apply to any news broadcaster in the UK: “My point would be that they are….givens to me. I would take that as a given, that if I want to be a news journalist broadcaster in this country, those are areas that I would not be able to work in”. 227. Mr Willcox said that, in practice, had he said something which was libellous he would probably have been individually called up and, if it was repeated, would not have worked again. He said that to all intents and purposes, as far as the BBC was concerned, he and TWL were the same and if he did something like that, then he would have been warned and then probably the BBC would not have used him again. He agreed that a good deal of his own behaviour involved self-regulation as to what was appropriate. He knew from his long experience what was and was not appropriate, as a BBC journalist. He agreed that he would not have done certain things as an impartial journalist who had worked for several news organisations and the national press and otherwise the work from the BBC would be likely to dry up. 228. Ms Gosling said similarly: “I am a journalist who will always do the job to the best of my ability. I would do that whatever the terms were. As a freelancer, as a member of staff. I don’t do it because of what something says in a contract”
“I think if I was interested in stuff like that, I wouldn’t do the job I do, which is a job which does require you to be impartial…I actually struggle to ever kind of take a really partisan view of something because I’m just not that sort of person. So, therefore, I wouldn’t have ever wanted to do something that is campaigning, or anything controversial. So… I’m not that person because I’m told not to be it by something that has been written on a bit of paper, that’s just the person that I am.” 229. Ms Gosling said that as a sensible journalist: “ You sort of self-police because you would not do anything that is going to be controversial….I can’t see I would ever take a different view of whether something would be controversial from – from somebody else…I think we probably all have the same view of what, potentially, could give rise to somebody not being able to fulfil a role as an impartial broadcaster.” 230. Mr Willcox accepted that the BBC had the right, as a matter of contract, to withhold consent for outside activities, even though in some cases it gave an indication about the circumstances in which consent was likely to be forthcoming. He thought that the “the thrust” of the meaning of the relevant wording was that the BBC expected him to pursue other engagements but he would have to seek consent and would not do so without consultation. He clarified that, in practice, when he talked to the BBC about doing outside work, the BBC was content for him to do this work and it was generally done on a very informal basis. He thought that the BBC acknowledged all the way through that it was a freelance commitment on his part so that he could pursue other freelance activity albeit with their consent. He noted that in fact non-BBC work was actively encouraged by some at the BBC (such as Mr Bakhurst). 231. It was put to Mr Willcox that some of his contracts stated that his work as a television presenter and journalist was to be exclusive to the BBC. He said: “Well, no, that’s not true… I was allowed, and indeed did do, other work for other broadcasters, if I discussed it…..I did a documentary for Channel 5 which I wrote and presented and got permission for doing that before this period, but still working as a presenter for the BBC.”
“Of course, you will need to do work outside the BBC as a PSC”
“I admit I am not a brilliant reader of contracts….my understanding was that I could do broadcasting in other things…the other aspect of my career has been the books and it is home-making and I didn’t think that there was any bar”
“where I became aware that if you are in news, you cannot do something that endorses a product or anything else……they appear to be quite wide ranging, but the absolute link with all of them is you cannot do something that is you putting your weight behind a commercial product or a political party or a particular view on anything”. 240. Similarly she said that she had an obligation to be impartial, which was just part of being a journalist wherever she worked and that she was well aware that the fundamental thing as a broadcaster “whether it is for the BBC or any other broadcaster – is to be impartial”. 241. As regards chairing a conference she noted that as a journalist, she interviewed people who have controversial views all the time and that does not mean she agrees with those views: “I suppose you just need to take your judgment on whatever conference you were asked to do. If it is a conference with a particular agenda where the premise of the conference is to support a controversial view, then you would not get involved, but if it is a conference on something which is not controversial but as part of that conference, you will have, perhaps, one interviewee who does take a very strong view and on the other hand, somebody who takes a different view, then that is fine”
“final gate keeping role.. for doing one’s best to make sure that whatever we finally see at home is technically correct, both from a visual…and a sound point of view. But also doing one’s best to manage the standards that we do our utmost to uphold, indeed.” 258. During live broadcasts Mr Riseley gave the presenter directions in the sense of which camera or screen to look at, the timing of items/interviews (to ensure that the programme ended at the allotted time), who was next for interview and what story was coming up. During a breaking news story, he and the editor gave the presenter the latest information and provided graphics and maps so that the presenter had something to ad-lib to. 259. He noted that these directions were not orders. Very occasionally the presenter may say he/she did not wish to move to the next story or to run it. For him to direct a presenter to move on was rare. Through years of experience of working with particular presenters and understanding how they work, he thought he knew where they were going with the broadcast so he would not even have that conversation with them if he felt that they had a “certain thought process…, a certain rhythm, structure, to an interview”
“ There are very rare occasions when due to the way that news wires are received, a presenter might decide, of their own volition, to break that story, based on their judgment. And again, that would surprise me. I probably, as a director, might not be too happy about it, because there are various other people involved in making sure that whatever is said and seen on air happens simultaneously, but there is the odd occasion where that could happen.” 261. He agreed that if the editor wanted the story to be run and the presenter refused to speak about it on air it was likely that there would be strong words exchanged at the end of the broadcast. He hoped such a situation would never arise given the collaborative process and teamwork; there should be a prior discussion before going on air when the presenter could raise any concerns and agreement could be reached. He could not in fact recall an example of this happening in 14 years of directing the news at the BBC. 262. He clarified that when speaking of the “right to veto” he meant that “ultimately…we find ways to agree or to treat stories in a way that will satisfy both…the editorial team and the presenter, who is the person that has to put their face on a camera at the end of the day, and represent themselves and the BBC”
“The way we work is as a team. There is rarely situations of conflict. We aim to listen to one another and get the best from whatever story and interviewee, and that means editors relying on presenters, just as it does presenters relying on editors, producers, the individual that has the onerous task of rolling the autocue in time, perhaps when a presenter is reading a scripted link, to a presenter having to listen to me perhaps making an inappropriate comment whilst they are trying to carry out an important interview.” 263. He said he had referred to technical failure as the case where the editor did not have the final say but whilst “rare perhaps….there could be other examples when that might not be every single time, the case”
“We have a comms system, at which point any of the editors sitting in the newsroom can squawk and ultimately make me answerable to them, should the direction of the programme not be going in the way that they would like it to be. So while they aren’t physically next to me, they’re certainly verbally next to me.” 271. He was asked whether, when there was a breaking news story, there were more senior people present to supervise the way in which it was dealt with. He said “yes” but that “all of this is nuanced, and if the story was of a particularly large nature, then multiply the number of editors and the seniority of those editors in the gallery accordingly.”
“on any story, there may be points on which one disagrees, and you would argue your corner, they would argue theirs, and you would come to a decision, and ultimately, that may not be my decision to take, in terms of the content…..By and large, overwhelmingly, in fact, I would say, if I come up with a decent interview and can contact them and get them on, that’s very well received….I will go further than just a good idea. If I see it as, editorially, the right route to take and valuable, I will push for that, and I would expect and hope to get that……..I accept I cannot control the content going out on air, but I can control some of it.” 299. Ms Gosling said that mostly she was comfortable about interviewing anyone without much notice, given her experience and the preparation she did. Occasionally she did feel unable to do so without more time to prepare, for example, when there was a contentious or legal issue. She said that it is generally well-understood by the production team that a presenter has to be properly prepared for an interview. She has never been or felt forced to do something she was not comfortable doing. 300. She did not usually discuss questions with anyone before interviews. On rare occasions, for example, where there was a legal issue, or an on-site reporter had very limited knowledge of a subject, questions were agreed in advance. She could not think of a single instance between 1999 and 2018 where she had been told not to ask a question in an interview. Occasionally, a producer may raise a question via her earpiece during an interview but she regarded these merely as suggestions; it was down to her if she took it on board or not. 301. Mr Eades recalled only a handful of occasions over the years when the editor suggested a question for an interview through the earpiece. He also regarded these as suggestions or advice that he may or may not follow; in his view, they were an offer of help, not editorial commands. 302. Mr Willcox said that, as a presenter on a show like World, he had much more control than on flagship programmes such as the BBC One news in that he would “write headlines, lead-ins” and do “all my own interviews” and he probably would not discuss any of the questions or areas with producers and editors because that would be left to him. He continued that in interviews “there is total editorial freedom about what I ask” because he was “hired as a professional journalist and interviewer”
“we are responsible for the final product of the programme, responsibility for the delivery of the content of this segment of the show transfers to Tim….He might indicate to the gallery which screen he wants to go to or he may even say it out loud. This process remains collaborative but ultimate control for this lies with the output editor.” 310. At the hearing Mr Bowen said that ultimately a decision whether to break a story was, as matter of working reality, a matter for the editor. When asked about responsibility for breaking a live unscripted two way he said that: “If, for example, as an output editor, a presenter said to me, “we need to break this”, I would look at it and if I did agree, we’d break it; if I didn’t, I would refer up to the editor either sitting next to me on occasion or in the newsroom upstairs”
“pictures would come through, and that running order was just thrown out, and I would be looking at pictures or in my ear, the directors would be saying, "We have now got pictures in from this". For example, there was one day in the Tunisian shootings and there was an attack on a Shia mosque, and the shooting in France, and those three stories all broke within the space of an hour and a half. So it was a question then, of whatever I could see, in terms of wires on my computer, pictures coming in to feeds into the studio, and between the director and myself, working out what we were going to go to then. Nothing was scripted for an hour and a half, and it was reliant on the presenter, me, to bring it all together and move those stories on, as and when another snap came from Reuters or AP. And if I missed it, my director or producer would say, "Snap on Reuters. Can you break that?", or if we are just rolling the whole time, I looked down and I don’t ask permission to do that, I just do it…the presenter drives it, apart from when the producer says, "we need to move back now to France because the home minister is arriving and we want to focus on that more now"”. 315. Mr Eades said that when presenting in the studio, he dealt with several pieces of breaking news on an average morning and nine out of ten times this was not scripted. It was up to him to pick out the breaking news from the monitor on his desk, which showed reports from various news agencies as well as social media and work out from his own experience whether the source was credible. This was often done in collaboration with an editor, who may also send particular news lines direct to him via the messaging system. This was “raw” material and not an edited, proofed and official BBC script. Mr Eades said that he still had to decide what to mention and what to leave out. He noted that the use of judgment and the presenter’s experience is vitally important in deciding what stories to break as some news agencies may be more or less accurate than others in different environments and parts of the world. Once the story became established, a producer would be expected to help by writing some script. He added that it is the nature of breaking news that there is a lot of ad-libbing, and timing is almost impossible to predict correctly; so there is a great onus on the presenter to decide what to include or drop and when to stop talking. Autocue/script 316. The Presenters all read from an autocue or script to some extent. The extent this was required varied from day to day depending on the extent there was breaking news and live interviews. Ms Gosling said that on a quiet news day most of the programme revolved around her presenting scripted introductions into recorded reports. If there was a major breaking news story, however, no autocue was used. She thought that the majority of programmes probably fell somewhere in between. 317. She said that given how fluid the output of the News could be, scripts were important because they provided the structure which the whole team could work to. The items that are “scripted” include headlines and introductions to any item which then lets everyone know what is going on next. 318. As regards how the presenters used the autocue: (1) Ms Gosling said that she used scripts as a prompt. They were not intended to be read on a literal word for word recitation. She used her own judgement as to when it was appropriate to read from them. She was constantly vigilant about spotting mistakes and making sure she was keeping items up to date (by ad-libbing breaking lines). She may choose not to read a scripted link if she did not like the style of it, in which case she either tried to re-write it beforehand, or she ad-libbed. (2) Mr Willcox also said that the autocue was not designed to be followed religiously unless there was a legal reason to do so. It was more of a framework or prompt to remind him what he was covering and the order of stories; it was designed as on-screen notes. (3) Mr Eades noted that reading from the script while looking straight at the camera helped to create a relationship with the viewer. The scripts could be changed at relatively short notice; updates or cuts to a particular script could be made easily and the presenter could deliver those changes. However, he regarded the autocue as a tool and nothing more. He regarded it as the presenter’s job to use it as best he saw fit. 319. Mr Willcox said that drafting the script for the autocue was a collaborative exercise. He tended to write headlines and sometimes pieces on a “fixed” news event (such as the opening of a gallery). He was free to alter scripts written by others such as by tweaking the script to sound more natural or to suggest a change in the running order. He said he had to be happy with the final version as only he was responsible for the words he said live on-air and he had to ensure the content was accurate. The final words spoken were typically written by him or at least edited and approved by him and he usually had the final sign-off. 320. Mr Bowen confirmed that Mr Willcox almost always re-wrote the script pages when prepared by others and that he checked and amended the autocue (as most presenters did). Once the programme was up and running, Mr Willcox received basic directions through his earpiece (such as what camera to look at) but there “is no real control of the presenter. He can say, in reality, what he wants and we trust him to exercise his judgment at all times. If he disagreed with what was written on the autocue, I would trust him to deviate from it in an appropriate way”. 321. Ms Gosling generally did not write her own scripts (although she could have done so); they tended to be written by the production team. Instead, as set out above, she spent her time preparing to go on air by reading into all the stories to be covered and researching and prepping for interviews. However, she did sometimes edit the script before going on air. 322. Mr Eades said that he often made changes to scripts and re-wrote cues and stories as he went along through a bulletin. He did not wait to be asked to do so or seek permission. It was often essential simply to correct scripts which were factually wrong or already outdated (sometimes requiring the autocue simply to be abandoned). If he thought that something needed to be changed, he simply changed it. He thought that this was something editors rather like as they cannot check every script for its accuracy. He also considered that editors like presenters to take an active role in the script in the sense of “personalising” it; the presenter’s job is “to maximise words, pictures, sounds...and that means veering from script either partially or (quite often) entirely”
“ we have been told, as presenters, over the years, to view the scripts as a sort of aide-memoire, as it were, rather than having to stick to it….so at times, with perhaps junior producers who are writing lead-ins, scripts, and there are legal errors, and if it weren’t for the presenter to pick up on that legal error, then the channel would be in trouble”. 326. He continued that: “TV has an amazing sort of breadth of experience and very talented, bright people coming through, some of whom are only 23/24, who are just learning their way, and in a rolling news channel, it’s not always apparent and there isn’t enough time for some rogue scripts to come through. Ultimately, the person who then delivers that has to make a split-second judgment about whether you have named somebody who shouldn’t be named, you know, in the middle of a court case, where something is prejudicial…a script which is wrong, legally wrong, prejudicial, coming through…the editorial control in that scenario rests with me, to prevent the channel getting into a legal scrape because of a mistake that’s been made…having been constructed and gone through this editorial process…that editorial process ends with me if something is wrong, because I have to correct it”. 327. He agreed that there were occasions when a script was positively required “where something is so tightly legalled, you have to stick to that script, and that might be once a week, or if it is an ongoing, you know, trial or something”
“Live unscripted two way exchanges should normally not be used to report allegations of serious wrong-doing. The editor must decide whether a live two-way is the appropriate and safest way to break a story. The seniority and track record of the correspondent is a relevant consideration”. 334. Mr Jordan said that this concerned rare and particularly sensitive situations; the relevant part of the Editorial Guidelines on this derived specifically from the well-known Gilligan report regarding allegations on the war in Iraq. He said that live unscripted “two ways” are a standard part of broadcast output but serious allegations are made in this way only on rare occasions. The guidelines on this are a “warning sign” telling the producer to be “very, very, careful because that has led to disaster in the past and we need to assess whether we want to do that very carefully”. 335. We note Mr Bowen’s evidence, at [309], that ultimately the decision on making such allegations was for the editor. We do not consider that the Presenters’ evidence is inconsistent with this albeit that they said that this was not always followed in practice and it was a matter of interpretation what constituted “serious” enough allegations to fall within this rule. Ms Gosling said that her recollection was that after the Neil report and the Hutton enquiry there was a discussion about whether there should be a script when dealing with allegations in live “two ways”
“In practice, in the field, he [Mr Bowen] wouldn’t - when we were working together, he might be standing next to me, he might not…he would have relied on me to have used my judgment on that. And, again, it comes down to an allegation: if you are accusing, you know, somebody in this country of something, it is different from, perhaps, a wider allegation abroad, when you are dealing in a civil war scenario”
“ when the bird is up and I’m speaking to a director, who will say to me, “We want you for the top. Can you give us three headlines, can you fill, can you get an interviewee? We have a package, a report, that is being made in-house, can you talk into that four minutes in”, and that is it. So you are very much left to your own devices.” 343. He said the roles of presenter and journalist “merge when one is out in the field, but one is primarily there as a presenter”
“ for the Japanese tsunami, we arrived…and I said to my cameraman as we arrived, “I want to do a quick rant”……a recording showing the number of people trying to leave Japan because of the tsunami. So the airport was filled with a lot of - especially a lot of foreign students and tourists trying to get out. So as soon as we landed I recorded that, so we could send that back as I then made my way to the live point for me to talk into something. So it’s a question of, as soon as one lands, thinking, “we’ve got all this air time to fill, I’d better prepare something in case we can’t get guests in the first hour”, so that is where the two roles merge.” 344. He also covered a lot of events in Greece regarding the “bailouts” and often would arrive at Athens airport with an hour to get on air, would make various calls to various contacts he had built up, “get the line about the statement that Tspiras was going to make, or something like that and as I arrived at the live point, without speaking to anyone editorially about it”, he would go on air “with what he had”
“ things are moving quickly and one is in the middle of a breaking story.. a director or producer might say, “We need to go here”…..but in terms of who is presenting it and who is having to think quickly and react immediately to something which is breaking, say, on an international news wire, that is me, invariably”. 358. He accepted, however, that the planning of a studio broadcast or the implementing of it is a collaborative exercise in which everybody is involved in their own way and it is a team effort to produce the end product and ultimately: “yes, of course, I work completely with my producers and editors. There are numerous times, though, where they are trusting, on my judgment, to actually move and break something, without them even telling me something .” 359. He said that “of course, that the BBC has the right of control”, but the BBC ultimately, in different types of news: “doesn’t have the control it would like to think it does, because it is just the practical execution of breaking news and reporting from abroad with no structured script, no - and no team behind you, apart from maybe a producer” 360. He agreed that in other words in a live news broadcast, the right of control can’t be exercised sensibly, on a pre-emptive basis. That only worked for certain aspects of presentation. He agreed that, ultimately, it is the producer’s job to manage the overall output but said that there are numerous occasions where a producer cannot manage all the output. As regards “fast TV, though, breaking second by second, as Richard Bowen….said, ultimately, he wants to think and feel he is in control. We work together because we think alike, and that is why it was a good partnership. So he doesn’t need to, and cannot physically push me in different directions. He trusts my judgment, in the way I trust him as well”. 361. He agreed, therefore, that whilst no-one “pulled the plug” on live television to prevent him saying something, there would be repercussions afterwards if he said something unacceptable. He said that because of the experience that presenters are expected to have that did not usually happen. There was an incident when he was criticised for a question and he was reported to Ofcom and also there was an internal investigation at the BBC and he was cleared. He put this down to the physical constraints and challenges that he had to deal with when carrying a whole programme (in this case an outside broadcast) with not very much to go on. He confirmed that the incident referred to occurred whilst he was an employee but the same procedures would have applied whether he was an employee of the BBC or acting through TWL. 362. It was put to him that neither he nor TWL could commission a story or feature; it was for the BBC to decide what to present. Mr Willcox said on occasions when he was in the field it was very much in his hands to come up with lines and stories to present to fill the air time (and he gave the example in relation to reporting on the bailouts in Greece as set out above). He said that essentially on such trips he was engaged on a freelance basis to go out there and present a particular programme for which he provided his own journalism. 363. He accepted that the producer and editor of the programme have the ultimate decision-making authority to decide whether or not to run a particular story in a programme. He noted, however, that he had worked with several producers, where it has been decided right at the end, before going on air, that: “we have got the wrong lead, and then through a collaborative process, we will change that. Now, there are some producers and editors who have that sort of flexibility and there are others who don’t, and I obviously prefer working with the former rather than the latter.” 364. It was put to him that if he had done a pre-recorded programme it would be up to the BBC to edit it as they wished. He said that in practice if he had done a pre-recorded interview, then he would have been responsible for that, probably, going out. There were times when he was abroad with no editor there and he would send “track and rushes” (meaning a voice track and uncut, unedited pictures) for assembly back in London. The producer might change things to make it fit or maybe to take a line out, but would always consult him before doing that. He agreed that the BBC could take parts out or could decide not to broadcast it and there were times the BBC did not run certain pieces when he wanted to and there was a row about it later. He agreed that ultimately the BBC had the right to edit such a report as they saw fit. 365. It was put to Ms Gosling that that it is ultimately up to the BBC to decide what is broadcast (under the editorial chain as Mr Jordan described). She said that she recognised this “as a paper notion……but when it comes to output, it doesn’t always translate that way”
“I don’t know…..how the editorial chain of responsibility kicks up, I just always saw it that, as I say, the sanction for me for making a mistake is just, you lose your job…obviously, there have been some very well-known examples of cases where managers higher up the level have taken the ultimate responsibility. But it doesn’t mean that down the chain, people have been spared as well.” 367. It was put to her that in carrying out her presenting work, she was curbed by BBC controls, albeit that she internalised them and worked out in her head the right way to do something, to make sure there was not a problem afterwards. She did not accept this in the sense that she knew the Guidelines were there: “but that is not what makes me behave the way I behave…. if I was going on air at the BBC and they put me in a studio and said, “You are free, whatever, tear up the guidelines, we don’t care what you do”, I wouldn’t do the job any differently. So I don’t think I’m curbed by the bits of paper.” 368. It was put to Mr Eades that editorial decisions were for the editor and the producer and not for the presenter. He said “editorial control is a very unclear, grey area, frankly”
“ The presenter ends up having to take very direct control of what’s going on, and…I at times, am controlling the output, effectively. I can’t, for a moment, pretend that I’m controlling an entire bulletin, because that’s - clearly, it’s nonsensical, and there’s someone who is in a position who would have that role, but where things are breaking around us, the presenter is - effectively, is running the show…..” 369. He recognised, however, that editorial responsibility belongs with the BBC itself in the grand scheme of things. It was the role of the programme editor to decide on the direction of a programme, the choice of topics and the order of topics. That could be done in collaboration with the presenter and he noted that, particularly with World, the presenter’s position is a senior position: “As it comes closer to a bulletin, and if things are moving around, the presenter’s role, inevitably, in importance, grows, to the point that, if we are in to breaking news and rolling news, the presenter is, in many regards, actually, as I said earlier, running the show”. 370. He concluded that in those cases, the element of control he had was highly significant. It was put to him that whilst in delivering the programme, a large burden fell on his shoulders, the editorial responsibility for the content remained with the BBC. He repeated that in a live rolling news scenario he may well be broadcasting and taking editorial decisions “minute by minute” throughout the course of the programme, until it ended. So, “he felt very much in control of the direction in which that was going”
“Whenever…I went to Las Vegas for a week to do a conference for the BBC marketing side of things, I went to California for a night to talk about reporting on the frontline but for these jobs it was always ex freelance contracts. So one would negotiate with marketing, for example….I don’t think there was a contract – you would agree a fee.” 376. Mr Eades said that programme promotion activities were never imposed upon him and he never had to attend news training sessions as a specialist guest (and he was not even sure he knew what that meant). He was asked a couple of times to front and moderate at the OECD in Paris, the ministerial forum there, and beyond that, “I was asked if I would attend a golf day, which I was happy to do…. had I said, “I can't do the golf”, they would have said, “Oh, that’s a shame. It would have been a nice day. Never mind”
“there were no benefits of any sort…. beyond being allowed to come into the building and do my work”
“employment is about being a part of an organisation where there is a reciprocal situation ….a commitment either way…when I first signed that contract….I did think that there was more of a reciprocal relationship…I did feel much more willing…I would stay for meetings, I would give more of my time. I didn’t see myself as just going into the building for a shift and leaving straight afterwards…There was no obligation for me to have a meeting either side of the shift, no obligation for me to be in the building any longer than for that shift.” 389. She was, however, later disappointed when she realised that she was not on equal terms with those who had been staff for years and had a higher salary. She was particularly upset by the fact that her contract could be terminated at any time. She had “always felt vulnerable, never had any guarantee of work…of another contract. I had no rights, no benefits, I have a 20-year career with no pension to show for it. I had hoped when that contract started, things would be different and I would start accruing rights and I still haven’t any. So, yes, I have done the same job and I have had no rights”
“It is custom and practice that presenters in our industry - this is not just the BBC but ITV and Channel 4 - are on long term contracts through [PSCs]”
“News presenters would, in future, only be offered employment contracts. This was a policy decision that had been made and was not the result of the BBC’s looking at the presenters’ employment status individually”
“It was a policy roll out in terms of the framework that had been agreed with HMRC, so it should have applied to any presenter going through contract renewal”. 406. Mr Smith was taken to what he thought was an early iteration of the test agreed with HMRC in September 2013. It took the form of a flow chart with a number of questions, the first of which referred to the BBC “having significant editorial control over content and activities outside the BBC” and asked whether the work undertaken was specifically covered by specified provisions in the Editorial Guidelines relating to those known as news presenters. He confirmed that the effect of the test was that anyone whose work was covered by those provisions was to be treated as an employee. He said that he was not aware that the Editorial Guidelines applied to independent production companies. He was not clear if and how the mutuality of obligation test was taken into account under the test. 407. He said that this approach was the position taken by HMRC since 2004. They linked their determination of presenters’ status “back to the control that existed in terms of the output, as well as the outside activities from the organisation, and so this specific link into the Editorial Guidelines was significantly HMRC’s view that drove the employment status since…..back in 2004”
“long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning…” 415. He continued that it is affirmed in the cases that “the factual background known to the parties at or before the date of the contract, excluding evidence of the prior negotiations” is of relevance. He noted, however, that when in Investors Compensation Scheme Ltd v West Bromwich Building Society[1998] 1 WLR 896 Lord Hoffmann (at pages 912-913) reformulated the principles of contractual interpretation, “some saw his second principle, which allowed consideration of the whole relevant factual background available to the parties at the time of the contract, as signalling a break with the past”
“(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. (2) …Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, [the background] includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man. (3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification….” 417. At [11], Lord Hodge said the following as regards interpretation as “a unitary exercise”: “where there are rival meanings, the court can give weight to the implications of rival constructions by reaching a view as to which construction is more consistent with business common sense. But, in striking a balance between the indications given by the language and the implications of the competing constructions the court must consider the quality of drafting of the clause….and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest… Similarly, the court must not lose sight of the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms.” 418. He said, at [12], that this unitary exercise involves “an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated” and to his mind: “once one has read the language in dispute and the relevant parts of the contract that provide its context, it does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each”. 419. He concluded at [13] that “textualism” and “contextualism” are not “conflicting paradigms in a battle for exclusive occupation of the field of contractual interpretation”
“Some agreements may be successfully interpreted principally by textual analysis, for example because of their sophistication and complexity and because they have been negotiated and prepared with the assistance of skilled professionals. The correct interpretation of other contracts may be achieved by a greater emphasis on the factual matrix, for example because of their informality, brevity or the absence of skilled professional assistance......The iterative process, of which Lord Mance spoke in Sigma Finance Corpn (above), assists the lawyer or judge to ascertain the objective meaning of disputed provisions.” 420. In the earlier decision in Autoclenz Ltd v Belcher , the question was whether individuals who provided car valeting services to Autoclenz had certain rights as “workers”
“(i) ….There must be an irreducible minimum of obligation of each side to create a contract of service”. (ii) If a genuine right of substitution exists, this negates an obligation to perform work personally and is inconsistent with employee status [referring to Express & Echo Publications v Tanton[1999] IRLR 367 at 699H]. (iii) If a contractual right, as for example a right to substitute, exists, it does not matter that it is not used. It does not follow from the fact that a term is not enforced that such a term is not part of the agreement : see eg the Tanton case, at p 687G.”
“ The evidence of a party as to what terms he understood to have been agreed is some evidence tending to show that those terms, in an objective sense, were agreed. Of course the tribunal may reject such evidence and conclude that the party misunderstood the effect of what was being said and done”. 431. At [33] Lord Clarke noted that, at [103], Sedley LJ said that he was entirely content to adopt the reasoning of Aikens LJ: “recognising as it does that while employment is a matter of contract, the factual matrix in which the contract is cast is not ordinarily the same as that of an arm’s length commercial contract.”
“So the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description. ” 434. Mr Peacock took from this that, in interpreting the contracts in this case, the disparity in the bargaining power of the parties must be taken into account. He raised no specific concern, however, other than that terms in the contracts purporting to give the BBC control should be “treated with circumspection”
“If the deceased had a contract of service with the company then the company had a right of control. The manner of its exercise would not affect or diminish the right to its exercise. But the existence of a right to control cannot be denied if once the reality of the legal existence of the company is recognised. Just as the company and the deceased were separate legal entities so as to permit of contractual relations being established between them, so also were they separate legal entities so as to enable the company to give an order to the deceased.” 465. In the Neufeld case it was held, with reference to the Lee case, that there was no reason as a matter of principle why a sole director and shareholder of an insolvent company could not be held to be an employee of the company (in which case he could claim from the Secretary of State amounts due under a statutory scheme such as unpaid wages, unpaid holiday pay and redundancy). At [28] Rimmer LJ noted that it might be thought that in such a company there could be no control of the putative employee. In practice control would be exercisable by the putative employee himself since he controls the company and so it would be “ easy to conclude that that cannot be real control”
“necessary, that is to say in order to give business reality to a transaction and to create enforceable obligations between parties in circumstances in which one would expect that business reality and those enforceable obligations to exist.” 468. Mr Tolley also noted that Elias J referred to the decision in Mitsui and Co Ltd v Novorossiysk Shipping Co. (The Gudermis) [10993] 1 Lloyd’s Rep.311, 320 where Staughton LJ said it is not enough for a contract to be implied “to show that the parties have done something more than, or different from, what they were already bound to do under obligations owed to others”
“What they do must be consistent only with there being a new contract implied, and inconsistent with there being no such contract”. 469. Mr Tolley submitted that it was necessary to imply a contract of employment between the PSC and the Presenter in order to give legal efficacy to many of the provisions in the Terms, such as those under which the PSC warranted it had control of the Presenter’s services or whereby it had to ensure that the Presenter did a number of matters. Legal efficacy can be given to those terms, he said, only on the basis that the PSC had a right of control over the Presenter’s performance of services as its employer; otherwise the PSC would not be in a position to make those representations. Similarly, the PSC would not be in a position to assign to the BBC the copyright in the product of the Presenter’s services unless there was an employment relationship in place. In that case it follows as an incident of law that copyright in the artistic or film work performed by the employee in the course of the employment belongs to the employer (sees 11 of the Copyright, Designs and Patents Act 1998 ). He also said that implying an employment relationship is consistent with and supported by the fact that the Presenter is shown as having received income from the PSC which was taxable as employment income and in some instances was described as remuneration. 470. Mr Peacock made the following main points: (1) The Lee case is particular to its facts. There is a statement in the articles of association of the company that it would “employ [Mr Lee] as the chief pilot of the company at a salary to be arranged…” which provides a basis on which the court could decide that there was a contract of employment. The decision may well have been influenced by the fact that if Mr Lee was an employee his widow could claim compensation. Neufeld adds little; the court merely made clear that there can be a contract of employment between a wholly owned company and its sole shareholder but inevitably that is fact specific. (2) In this case it is not necessary to imply an employment contract between each PSC and the Presenter for the relevant contractual provisions to operate. There are a number of possible arrangements under which the Presenters could have provided their services, such as a contract for services or an agency. The relationship between the Presenters and the PSCs is adequately explained by the Presenters’ shareholdings and the articles of association. In Jones v Associated Tunnelling Co Ltd [1981] UKEAT 523 80 1610 it was held that if a term needs to be implied into a contract, and it is not obvious what term to apply, it is necessary to “apply a term which the parties, if reasonable, would probably have applied if they had directed their minds to the problem”
“The servant must be obliged to provide his own work and skill. Freedom to do a job either by one’s own hands or by another’s is inconsistent with a contract of service, though a limited or occasional power of delegation may not be.” 478. He noted, at 515E, that “control” includes “the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done”: “All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant. What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters….” 479. He continued, at 516A, that to find where the right resides one must look first to the express terms of the contract, and if they deal fully with the matter one may look no further. If the contract does not expressly provide which party shall have the right, the question must be answered by implication. 480. He described the third condition as a “negative” one and illustrated its interaction with the other tests with a number of examples (at 516B to 517B). He said that, for instance, if a person is engaged to build for another person but provides the necessary plant and materials at his own expense, there is a contract to produce a thing (or a result) for a price. On the other hand, if a labourer has to provide some simple tools and to accept the builder’s control, the obligation to provide the tools is not a sufficiently important matter to affect the substance of the contract as one of service. As Mr Peacock emphasised he said that, in other words, an obligation to do work subject to the other party’s control is “a necessary, though not always a sufficient, condition of a contract of service” and : “If the provisions of the contract as a whole are inconsistent with its being a contract of service, it will be some other kind of contract, and the person doing the work will not be a servant. The judge’s task is to classify the contract (a task like that distinguishing a contract of sale from one of work and labour). He may, in performing it, take into account other matters besides control .” 481. He continued to cite a number of authorities from which he concluded, at 522G, that the common law test as regards control is not to be restricted to the power of control over the manner of performing service but is wide enough to take account of investment and risk. He also referred to the dictum of Denning LJ in Bank voor Handel en Scheepvaart N.V. v Slatford[1953] 1 QB 248 where he said that “the test of being a servant does not rest nowadays on submission to orders. It depends on whether the person is part and parcel of the organisation”
“ The master may be employed by the owners under what is clearly a contract of service, and yet the owners have no power to tell him how to navigate his ship. As Lord Parker CJ pointed out in Morren v Swinton and Pendlebury Borough Council [1965 ] 2 All ER 349 at 351, when one is dealing with a professional man, or a man of some particular skill and experience, there can be no question of an employer telling him how to do the work; therefore the absence of control and direction in that sense can be of little, if any, use as a test.” 483. He referred to the comments of Lord Denning as set out above and those of Lord Wright and of the US Supreme Court respectively that the question whether a person is an employee may be determined by asking “whether the party is carrying on the business, in the sense of carrying it on for himself or on his own behalf and not merely for a superior” or “as a matter of economic reality” (see Montreal Locomotive Works v Montreal and A-G for Canada[1947] 1 DLR 161 , at 169 and US v Silk (1946) 331 US 704). He considered, at 184G, that these observations indicated that “the fundamental test” to be applied is: “‘Is the person who has engaged himself to perform these services performing them as a person in business on his own account?’”. 484. In his view, there is no single definitive test, at 184H: “ no exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant…..nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases”
“ whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.” 485. He concluded that the company had extensive control consistent with employment in that case (through a guide on the technique of interviewing (much of which was couched in imperative language) and detailed instructions on conducting the interviews (see 185E to 186B). HMRC pointed to the fact that Cooke J said his conclusion on control was not affected by the fact there was a practical limitation on the possibility of giving instructions to the relevant individual while actually working in the field, because her supervisor would then have no means of getting into touch with her as: “there must be many cases when such practical limitations exist. For example, a chauffeur in the service of a car hire company may, in the absence of radio communication, be out of reach of instructions for long periods. 486. HMRC also drew attention to the fact that, at 188A to C, Cooke J did not think it could be said the individual was in business on her own account as an interviewer on the basis that she was free to work as an interviewer for others (although there was no finding that she did so) and in her work she would, within the limits imposed by her instructions, deploy a skill and personality which would be entirely her own: “ The opportunity to deploy individual skill and personality is frequently present in what is undoubtedly a contract of service. I have already said that the right to work for others is not inconsistent with the existence of a contract of service. Mrs Irving did not provide her own tools or risk her own capital, nor did her opportunity of profit depend in any significant degree on the way she managed her work”. 487. The approach of assessing whether the relevant person was in business on his own account was followed in Fall (Inspector of Taxes) v Hitchen(1973) 1 WLR 286 and Lee Ting Sang v Chung Chi-Keung[1990] 2 AC 374 . In Fall v Hitchen it was held, at 292H to 293A, that a professional dancer was taxable as an employee on his earnings from a contract with a ballet company; virtually all the relevant factors pointed to there being a contract of service: “The taxpayer is engaged to work for a minimum period of rehearsal plus 22 weeks, and thereafter until the contract is determined by a fortnight’s notice on either side; he is engaged to work full-time during specified hours for a regular salary; the company has the first call upon his services, and indeed the exclusive call subject only to this, that its consent to the taxpayer performing elsewhere should not be unreasonably withheld; and then, again, the company provides and owns the gear used by the taxpayer with one exception…...” 488. It was noted, at 293F to G, that counsel for the appellant relied on Davies (H.M . Inspector of Taxes) v Braithwaite [1931] 2 K.B. 628 in contending that the word “employment” in the relevant taxing provision does not include engagements entered into as an “incident” to the carrying on of a profession, on the basis that “incident” means “that which formed part of the fabric of the profession”
“A man might have the steadiest employment in the world by day, and he might do something quite different in the evening and make some more money by the exercise of a profession or vocation ….and even if it were in the same sphere, I do not see why he should not have both an employment as well as a profession. For instance, a musician, who holds an office or employment under a permanent engagement can at the same time follow his profession privately.” 489. He said, at 635, that he thought the legislature “had in mind employments which were something like offices”, and said he thought “of the word "posts" as conveying the idea required”
“…. it seems to me that where one finds a method of earning a livelihood which does not consist of the obtaining of a post and staying in it, but consists of a series of engagements and moving from one to the other……then each of those engagements cannot be considered employment, but is a mere engagement in the course of exercising a profession…” 490. In this case he thought it clear, at 636, that the appellant fell on the self- employment side of the line as she did not contract with a producer for a “post” but rather she: “makes a contract with a producer for the next thing that she is going to do, and then another producer, and then a third producer, and at any time she may make a record for a gramophone company or act for a film. I think that whatever she does and whatever contracts she makes are nothing but incidents in the conduct of her professional career.” 491. In Fall v Hitchen Sir John Pennycuick V-C commented that Rowlatt J was not saying that a professional such as an actor could not be engaged on an employment basis or as he put it in a “post” (and his comments were approved in Hall v Lorimer ). He noted, at 295H to 296A, it is implicit in the whole of his judgment that: “if a professional person, whether an actor or anybody else, enters into a contract involving what Rowlatt J. calls a post, then that person will be chargeable in respect of the income arising from the post [as employment income] notwithstanding that he is at the same time carrying on his profession, the income of which will be chargeable [as income from self-employment]. The instance of a musician puts that point very neatly”. 492. He did not think, at 296B, that most people today would use the word “post”, which does not seem very apt to cover the countless instances of employment in the sense of a contract of service. However, at 296B to C: “every word of that judgment is applicable as between the carrying on of a profession and an engagement in the course of carrying on that profession, on the one hand, and a contract of employment, on the other hand. The fact that an actor normally undertakes a succession of engagements in the course of carrying on that profession in no way involves the result that if an actor enters an acting employment in the nature of a post, that he is not assessable under Schedule E in respect of the income arising from that employment”. 493. In the Lee Ting Sang case the Privy Council held that a casual worker on a building site was an employee of the subcontractor for whom he was working at the time he suffered an accident (and was, therefore, entitled to be compensated under a Hong Kong ordinance). Lord Griffiths said, at 383F to G, that all the tests, or indicia, mentioned by Cooke J in the Market Investigations case pointed to the status of an employee. The applicant did not provide his own equipment; it was provided by his employer. He did not hire his own helpers; he gave priority to the sub-contractor’s work and if asked to do an urgent job he would tell those he was working for that they would have to employ someone else: “if he was an independent contractor in business on his own account, one would expect that he would attempt to keep both contracts by hiring others to fulfil the contract he had to leave”
“the picture emerges of a skilled artisan earning his living by working for more than one employer as an employee and not as a small businessman venturing into business on his own account as an independent contractor with all its attendant risks. The applicant ran no risk whatever save that of being unable to find employment which is, of course, a risk faced by casual employees who move from one job to another ….”
“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. The process involves painting a picture in each individual case. As Vinelott J. said in Walls v. Sinnett ( 1986) 60 T.C. 150, 164: "It is in my judgment, quite impossible in a field where a very large number of factors have to be weighed to gain any real assistance by looking at the facts of another case and comparing them one by one to see what facts are common, what are different and what particular weight is given by another tribunal to the common facts. The facts as a whole must be looked at, and what may be compelling in one case in the light of all the facts may not be compelling in the context of another case."”
“[The taxpayer] provides no equipment (i.e. he has no tools) he provides no “work place” or “workshop” where the contract is to be performed, he provides no capital for the production, he hires no staff for it. No; he does not. But that is not his business. He has his office, he exploits his abilities in the market place, he bears his own financial risk which is greater than that of one who is an employee, accepting the risk of bad debts and outstanding invoices and of no or an insufficient number of engagements. He has the opportunity of profiting from being good at being a vision mixer. According to his reputation so there will be a demand for his services for which he will be able to charge accordingly. The more efficient he is at running the business of providing his services the greater is his prospect of profit.” 497. It was noted, at 217E, that it was submitted that not much significance should have been attached to the risk of having no engagements because, as was pointed out in the Lee Ting Sang case, this is a risk faced by casual employees who move from one job to another. Nolan LJ said, at 216 B to C, that it was clear from that case that the specific mention of casual employment in the Hong Kong ordnance in question was not essential to the decision in the case. On that basis he accepted that was the case but said that “the risk of bad debts and outstanding invoices is certainly not one which is normally associated with employment”
“Surely the self-employed barrister advising in his chambers or the doctor advising in his surgery is selling his skill and labour and not its product. If the scene shifts to the court or to the operating theatre can the client or patient really be said to be buying the product which may be disastrous in spite of the best efforts of the advocate or the surgeon in the litigation or operation?” 499. He continued, at 218C to E, that the question, whether the individual is in business on his own account, though often helpful, may be of little assistance in the case of one carrying on a profession or vocation. For example, a “self-employed author working from home or an actor or a singer may earn his living without any of the normal trappings of a business”
“ there is much to be said in these cases for bearing in mind the traditional contrast between a servant and an independent contractor. The extent to which the individual is dependent upon or independent of a particular pay master for the financial exploitation of his talents may well be significant. It is, I think, in any event plain that Cooke J…..was not intending to lay down an all purpose definition of employment. For example, his test does not mention the duration of the particular engagement or the number of people by whom the individual is engaged. Cooke J. said…. that he took account of the fact that the lady concerned was free to work as an interviewer for others but added that there was no finding that she did so. This is of little assistance in the present case of which the most outstanding feature to my mind is that Mr. Lorimer customarily worked for 20 or more production companies and that the vast majority of his assignments……lasted only for a single day.”
“To take one obvious example, an obligation by the one party to accept and do work if offered and an obligation on the other party to pay a retainer during such periods as work was not offered would in my opinion, be likely to suffice . In my judgment, however, as I have already indicated, the authorities require us to hold that some mutuality of obligation is required to found a global contract of employment. In the present case I can find no such mutuality subsisting during the periods when the applicant was not occupied in a “single engagement”.”
“I would hold as a matter of construction that no obligation on the [the company] to provide casual work, nor on [the guides] to undertake it, was imposed. There would therefore be an absence of that irreducible minimum of mutual obligation necessary to create a contract of service”. 506. The parties both referred, in particular, to the comments of Park J in Usetech Ltd v Young (2004) 76 TC when considering the mutuality test in an IR35 context. At [57] and [58]: (1) He concluded from cases such as Clark and Carmichael that if the relationship is one under which the putative employer “can offer work from time to time on a casual basis, without any obligation to offer the work and without payment for periods when no work is being done….there cannot be one continuing contract of employment over the whole period of the relationship, including periods when no work was being done. There may be an 'umbrella contract' in force throughout the whole period, but the umbrella contract is not a single continuing contract of employment”. (2) However, he noted that this “leaves open the possibility that each separate engagement within such an umbrella contract might itself be a free-standing contract of employment”
“ a contract which provided for payment (in the nature of a retainer) for hours not actually worked. It is only where there is both no obligation to provide work and no obligation to pay the worker for time in which work is not provided that the want of mutuality precludes the existence of a continuing contract of employment . See especially the Clark and Stevedoring & Haulage cases….”
“the issue of whether the employed person is required to accept work if offered, or whether the employer is obliged to offer work as available is irrelevant to the question whether a contract exists at all during the period when the work is actually being performed. The only question then is whether there is sufficient control to give rise to a conclusion that the contractual relationship which does exist is one of a contract of service or not.” 510. Mr Peacock drew attention in particular to Langstaff J’s conclusion, at [47] and [48], in effect that the mutuality test extends to examining the nature of the contract and whether there is a “wage-work bargain” (as was cited with approval in Drake v Ipsos MORI at [33]): “Mutual obligations are necessary for there to be a contract at all. If there is a contract, it is necessary then to determine what type of contract it is. If it is a contract of employment, consequences will follow of the greatest significance….. These matters are determined by the nature of the mutual obligations by reference to which it is to be accepted that there is a contract of some type ….. It cannot simply be control that determines whether a contract is a contract of employment or not. The contract must also necessarily relate to mutual obligations to work, and to pay for (or provide) it: to what is known in labour economics as the "wage-work bargain "”. (emphasis added) 511. At [49] Langstaff J noted that it was submitted that the obligations which identify a contract as one of employment are flexible and differ according to the context relying on the judgment of Buckley J in Montgomery v Johnson Underwood Ltd[2001] ICR 819 at [23] where he said: “Clearly as society and the nature and manner of carrying out employment continues to develop so will the Court’s view of the nature and extent of "mutual obligations" concerning the work in question and "control" of the individual carrying it out…” 512. He continued that later in that case Buckley J referred to the Ready Mixed Concrete test as permitting a tribunal “appropriate latitude in considering the nature and extent of mutual obligations in respect of the work in question and the control an employer has over the individual”
“we cannot see that such elastic as there may be in the idea of mutuality of employment obligations can be stretched so far that it avoids the necessity for the would be employee to be obliged to provide his work, personally. The old fashioned description of a contract of employment as one of service……puts “service” (ie the obligation to work, personally, for another) at the heart of the relationship ” 513. At [54] Langstaff J said that as “mutuality of obligation” may be used in different senses it is important to know precisely what is being considered under that label and for what purpose. In passages HMRC relied on, he continued, at [55], that there was concern that tribunals misunderstood something further which characterises the application of mutuality in the sense of the “wage/work bargain”, namely, that: “ it does not deprive an overriding contract of such mutual obligations that the employee has the right to refuse work. Nor does it do so where the employer may exercise a choice to withhold work. The focus must be upon whether or not there is some obligation upon an individual to work, and some obligation upon the other party to provide or pay for it . Stephenson LJ in Nethermere put it as “… an irreducible minimum of obligation …”
“.. I would accept that an arrangement under which there was never any obligation on the outworkers to do work or on the company to provide work could not be a contract of service. But the mere facts that the outworker could fix their own hours of work, could take holidays and time off when they wished and could vary how many garments they were willing to take on any day or even to take none on a particular day, while undoubtedly factors…to consider in deciding whether or not there was a contract of service, do not as a matter of law negative the existence of such a contract.” 515. In the later decision in the EAT in James v Greenwich Elias J took a very similar approach to that set out in the Delphi Diesel Systems case. He noted at [16], that “sometimes, the employer’s duty is said to be to offer work, sometimes to provide pay” but, in a succinct statement of the applicable principles, the critical feature is that: “the nature of the duty must involve some obligation to work such as to locate the contract in the employment field. If there are no mutual obligations of any kind then there is simply no contract at all, as Carmichael makes clear; if there are mutual obligations, and they relate in some way to the provision of, or payment for, work which must be personally provided by the worker , there will be a contract in the employment field; and if the nature and extent of the control is sufficient, it will be a contract of employment.”
“ Even where the work-wage relationship is established and there is substantial control, there may be other features of the relationship which will entitle a tribunal to conclude that there is no contract of employment in place even during an individual engagement. O'Kelly and Ready Mixed provide examples.” 517. HMRC pointed to Cornwall County Council v Prater[2006] ICR 731 as authority that each separate assignment undertaken by a person may constitute an employment notwithstanding the lack of on-going obligations to offer or accept further work under an umbrella contract. In that case the Court of Appeal upheld the tribunal’s decision that (a) there was the required mutuality for there to be an employment relationship between the council and a teacher as regards each of a number of individual assignments to tech pupils out of school which were of varying duration undertaken over a ten year period and (b) the times between the assignments when the teacher undertook no work for the council could be treated as periods of employment under the relevant statutory provisions (under theEmployment Right Act 1996 (“ ERA ”)). This was sufficient to establish the required continuity of employment for Mrs Prater to have the relevant employment rights she claimed she had. 518. The Court of Appeal set out, at [21], that the tribunal based their conclusion that the mutuality test was satisfied on the fact that the teacher was committed to teaching a pupil for as long as was necessary under an open ended arrangement as follows (at [14] of their decision): “…..having agreed to take on a pupil the claimant regarded herself as committed to deliver teaching to that pupil for as long as was necessary or until the arrangement was brought to an end for particular reasons. The respondents had a similar view of the situation. The matter was subject to regular review, as might have been expected, but was not re-negotiated on a week by week or month by month basis. It simply rolled on for as long as was necessary…...” 519. The passage cited included the tribunal’s comment that there was an important difference between the teacher’s situation and that of the individuals in the cases of Carmichael and Clark ; in those cases “the periods of work were short and known to be so from the outset” whereas in the teacher’s case “the arrangement was very much more open-ended…” 520. At [39] and [40] Mummery LJ agreed with the tribunal’s conclusion. He thought it clear that, had Mrs Prater been engaged to teach the pupils in a class, collectively or individually, at school under a single continuous contract to teach, she would have been employed under a contract of service. He said that it made no difference to the legal position that she was engaged to teach them out of school on an individual basis under a number of separate contracts running concurrently or successively nor that: “… after the end of each engagement, the Council was under no obligation to offer her another teaching engagement or that she was under no obligation to accept one. The important point is that, once a contract was entered into and while that contract continued, she was under an obligation to teach the pupil and the Council was under an obligation to pay her for teaching the pupil made available to her by the Council under that contract . That was all that was legally necessary to support the finding that each individual teaching engagement was a contract of service. Section 212 took care of the gaps between the individual contracts and secured continuity of employment for the purposes of the 1996 Act.”
“whilst the fact that there is no umbrella contract does not preclude the worker being employed under a contract of employment when actually carrying out an engagement, the fact that a worker only works casually and intermittently for an employer may, depending on the facts, justify an inference that when he or she does work it is to provide services as an independent contractor rather than as an employee…..” (2) In Windle the question was whether individuals who provided interpreter services were appointed under a contract personally to do work. Underhill LJ held, at [23], that the employment tribunal had not misdirected itself in holding that the absence of an umbrella agreement was a relevant factor in assessing the nature of short-term assignments: “….the ultimate question must be the nature of the relationship during the period that the work is being done. But it does not follow that the absence of mutuality of obligation outside that period may not influence, or shed light on, the character of the relationship within it. It seems to me a matter of common sense and common experience that the fact that a person supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense. Of course it will not always do so, nor did the ET so suggest. Its relevance will depend on the particular facts of the case; but to exclude consideration of it in limine runs counter to the repeated message of the authorities that it is necessary to consider all the circumstances.” 524. In Weight Watchers , in considering the mutuality test at [30] to [32], Briggs LJ summarised the position as established in the cases as being that arrangements may, at least in theory, fall into three categories: (a) “a single over-arching or umbrella contract containing all the necessary provisions, with no separate contracts for each period (or piece) of work”, (b) “a series of discrete contracts, one for each period of work, but no over-arching or umbrella contract” or (c) a “hybrid, class… of an over-arching contract in relation to certain matters, supplemented by discrete contracts for each period of work”. 525. He said that in the hybrid case, depending on the nature of the dispute, it may be “sufficient if either the over-arching contract or the discrete contracts are contracts of employment”
“the requisite irreducible minimum of mutual work-related obligation subsists throughout each relevant discrete contract, not merely during the potentially shorter period when the contracted work is actually being done”
“in the former the contracting party is performing his obligation by providing another person to do the work whereas in the latter the contracting party is relying upon a qualified right not to do or provide the work in stated circumstances, one of the qualifications being that he finds a substitute to contract directly with the employer to do the work instead.” 530. At [35] he said that the second possible relevance of substitution clauses is that, even if the clause is of the second kind, the individual’s “right to avoid doing any particular piece of work may be so broadly stated as to be destructive of any recognisable obligation to work”
“the real question is in my judgment whether the ambit of the substitution clause, purposively construed in the context of the contract as a whole, is so wide as to permit, without breach of contract, the contractor to decide never personally to turn up for work at all. That was indeed held to be the true construction of the relevant clause in Tanton .”
“ Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.” 533. This decision was appealed and, since the hearing of these appeals, the Supreme Court has released their decision in Pimlico Plumbers Ltd & Anor v Smith [ 2018] UKSC 29 . Lord Wilson (who gave the judgement with which the rest of the panel agreed) did not refer to the above passage but nothing in his judgement casts any doubt on the comments there set out. He held, at [34], that the tribunal was entitled to hold that the “dominant feature” of the relevant contracts was an obligation of personal performance and that to the extent that the individual’s facility to appoint a substitute was the product of a contractual right (as he assumed it was), the limitation of it was significant: “the substitute had to come from the ranks of Pimlico operatives, in other words from those bound to Pimlico by an identical suite of heavy obligations. It was the converse of a situation in which the other party is uninterested in the identity of the substitute, provided only that the work gets done..” 534. Mr Peacock pointed to the passages at [48] of the Professional Contractors case where Burton J considered whether the fact that the expertise of a contractor who provided specialist computer services at a client’s premises may become such that no one else would be able to replace him indicated against employment. He said that “given that the issue is not determinative, but only one of the factors, that may indeed be right and may in a particular engagement be a strong counter-indicator against employment”
“In some contexts the degree of control exercised may be very important in deciding whether someone is an employee or servant, but in the case of a senior lecturer at a college of further education, more particularly one who like the taxpayer came into teaching from active work as a singer, it is not surprising to find that he was given a very wide degree of latitude in the organisation of his work and time.” 537. In Montgomery v Johnson Underwood Ltd , at [19], Buckley LJ noted that in Ready Mixed Concrete MacKenna J had “well in mind that the early legal concept of control as including control over how the work should be done was relevant but not essential”
“some sufficient framework of control must surely exist. A contractual relationship concerning work to be carried out in which the one party has no control over the other could not sensibly be called a contract of employment.” 538. He noted that MacKenna J cited a passage from the judgment of Dixon J in Humberstone v Northern Timber Mills(1949) 79 CLR 389 from which he referred to the first few lines: “The question is not whether in practice the work was in fact done subject to a direction and control exercised by any actual supervision or whether any actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.” 539. He continued, at [23], that as society and the nature and manner of carrying out employment continues to develop, so will the court’s view of the nature and extent of “mutual obligations” and “control”
“to be expected that the staff will be closely controlled so as to achieve the cruise line’s objective because the staff are in the public eye at all times. This factor seems to us to have less bearing on the employment status of the staff than might be the case if the context were different. It is not the case that the self-employed have complete freedom over what they do. An actor can discuss points of interpretation with the director as an equal but in the end the director’s wishes will prevail....” 547. At [13] the tribunal held that the appellants did not have a series of “posts” but earned their living under a series of separate engagements in a similar way to an actor as in Davies v Braithwaite . They concluded, at [14], that in this context it was right to give more weight to this point than to control. In the UT, in rejecting the argument that the tribunal gave insufficient weight to control, Mann J said, at [18], that the conclusion on control was “entirely justifiable” : “….the requirement of a certain degree of behaviour when “off duty” and not performing is not control over the employment activities and the performer. It is a degree of control which is required because the performers are part of a community confined on a ship for days on end and in which the ship has its own standards. It is not really related to the engagement as a performer at all. The requirement to comply with the ship’s regulations is probably a requirement imposed on all people on the ship; crew, passengers, entertainers and all others.” 548. Mr Peacock relied on the case of Marlen Ltd v Revenue and Customs Commissioners[2011] UKFTT 411 (TC) ;[2011] STI 2439 as support for the proposition that control over an aspect of a person’s performance of their services is not indicative of an employment relationship if the same control is exercised over independent contractors and employees. In that case, as noted at [46], all persons engaged had to work together to produce a specific machine within a specified timeframe which could only be achieved by a “reasonably rigorous direction and supervision by senior management”
“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.”
“ If the actual contractual arrangements between the parties do include statements of intention, they should in my view be taken into account, and in a suitable case there may be material which would justify the inclusion of such a statement in the hypothetical contract. Even then, however, the weight to be attached to such a hypothetical statement would in my view normally be minimal, although I do not rule out the possibility that there may be borderline cases where it could be of real assistance.”
“as if - (a) the determination were an assessment, and (b) the amount of tax determined were income tax charged on the employer, and those Parts of that Act apply accordingly with any necessary modification.” 650. Section 29(1) TMA provides a mechanism for HMRC to make an assessment where the usual time limit of 12 months for them to enquire into a self-assessment return has expired. It applies where “ an officer of the Board or the Board discover , as regards any person (the taxpayer) and a year of assessment” that, amongst other circumstances, “any income which ought to have been assessed to income tax has not been assessed”
“…the word “discovers” does connote change, in the sense of a threshold being crossed. At one point an officer is not of the view that there is an insufficiency such that an assessment ought to be raised, and at another he is of that view. That is the only threshold that has to be crossed…..” 660. The UT continued, at [76], that as was said in Charlton at [37], no “new information, of fact or law, is required for there to be a discovery”
“(3) We entirely agree with the Upper Tribunal in Charlton that on making a discovery, HMRC must act expeditiously in issuing an assessment. If, to use the words of Charlton , an officer has made a discovery, then any assessment must be issued whilst the discovery is “new” [and they referred to Pattullo v Revenue and Customs Commissioners[2016] UKUT 270 (TCC) at [46] to [56]]. (4) It follows from this that the same officer (or officers) cannot make the same discovery twice. We see no reason, however, why the same officer cannot, for different reasons, discover that one of the situations set out in section 29(1)(a), (b) or (c) pertains a second time…. (6) What, however, if two different officers independently make the same discovery? In our judgment, as a matter of ordinary English, a discovery can only be made once. We accept that section 29(1) TMA is framed by reference to the subjective state of mind of an officer or the board, but what is a “discovery” is an objective term. It seems to us that in this case, the first officer makes the discovery; the second officer simply finds out something that is new to him. In particular if one officer is made aware of, and accepts, the conclusion of another officer it cannot be said that the first officer made a discovery. (7) We consider that such a construction is necessary for the protection of both the taxpayer and officers of HMRC….”
“ the requirement for the conclusion to have "newly appeared" is implicit in the statutory language "discover"”
“The word “if”, like many words in the English language, has a variety of shades of meaning. It may be purely conditional. But it may equally have a temporal aspect, as in the expression “if and when” (e.g. if the sun comes out we shall go to the beach). I do not regard this as stretching the meaning of “if”
“Mr Gordon was right, in my view, to accept that the discovery could be kept fresh for the purposes of being acted upon later…..each case would turn on its particular facts. He gave the example of notification being given to the taxpayer of the discovery in the expectation that matters could be resolved without the need for a formal assessment to be made. No doubt there are many other examples which could be given. The UT in Charlton at para 37 recognise that the decision in each case will be fact sensitive. I do not think it would be helpful to try to define the possible circumstances in which a discovery would lose its freshness and be incapable of being used to justify making an assessment. But I consider that Mr Gordon was right to accept that it would only be in the most exceptional of cases that inaction on the part of HMRC would result in the discovery losing its required newness by the time that an assessment was made.” 667. The UT concluded, at [57], that in the circumstances of that case, a delay of some 18 months or more would have made the discovery stale. 668. Mr Tolley noted that the UT considered that an assessment may lose its “newness” only in exceptional cases. In his view, it is clear from the above passages that it is not only the lapse of time between the discovery and the issue of the assessment or determination which is relevant. The tribunal must consider all the surrounding circumstances and, in particular, the reason for any delay and activity in the period between the two events. A discovery should not be regarded as losing its “essential newness” where, in the period before the determination is issued, there are on-going active discussions/correspondence between the parties in relation to the tax issue in question such that the taxpayer cannot be in any doubt that HMRC intend to issue it. He submitted that was clearly the case as regards both AML and TWL. He said that it must also be borne in mind that this is not a situation where HMRC may be criticised for failing to deal with matters for many years. Facts 669. We note that, in the circumstances of this case, we consider that we can determine, in respect of each of these appeals, that a relevant discovery was made and when it was made (to a sufficient degree of approximation) from the documents in the bundles. We do not consider, therefore, that HMRC has failed to discharge the burden of proof upon them in this respect as they did not produce any witnesses from HMRC to give evidence on this. 670. In relation to TWL: (1) We accept that HMRC made a discovery as regards the tax years 2006/07 to 2009/10 when the relevant officer issued an opinion on13 June 2012 that IR35 applied. The determinations and NICs notices for those years were issued on8 March 2013 . There was a period, therefore, of nearly nine months between the discovery and the issue of the determinations. (2) It is less clear when the discovery was made in relation to the tax years 2010/11 and 2011/12. It appears from the correspondence set out below that it was made sometime between6 September 2013 and18 March 2014 . The relevant determinations and NICs notices were issued on5 December 2014 . On balance it is reasonable to suppose that the discovery was made in late September or October 2013 given that it was at that point that it appears that HMRC received the contracts relating to the relevant periods. There was a period, therefore, of, at most, around 14 months between the discovery and the issue of the relevant determinations. 671. In outline, the history of the correspondence is as follows in the period leading to the issue of the initial determinations on8 March 2013 : (1) On22 November 2010 , HMRC notified TWL they were checking its PAYE and NICs position and asked for a breakdown of income shown in its accounts to31 October 2009 and copies of the contracts giving rise to the income. On 15 and16 December 2010 Mr Willcox provided HMRC with a spreadsheet of TWL’s transactions and copies of contracts. (2) In early 2011, HMRC said they needed further information and requested a meeting. DTE was then appointment to act for TWL and there was a meeting between HMRC, DTE and Mr Willcox on12 July 2011 . HMRC circulated notes of the meeting on13 February 2012 and DTE said they were broadly in agreement with them. Mr Goldie later said on24 May 2012 that he was happy for the notes to be held out as HMRC’s notes but without his client signing them. (3) On26 January 2012 HMRC met with, amongst others, Mr Bakhurst and Mr Smith at the BBC to discuss TWL as recorded in meeting notes which were sent to the BBC for their approval. (4) On13 June 2012 HMRC issued the status opinion to DTE it appears on the basis of a review of the contracts relevant to the tax years 2008/09 to 2010/11. (5) On30 August 2012 HMRC wrote to Mr Goldie noting that they had noticed that Mr Wilcox was engaged by the BBC through his PSC from 2006/07 to 2011/12 and that it was likely IR35 also applied to these contracts. HMRC asked for tax calculations for all years or, if DTE disagreed, for sight of the additional contracts. HMRC sent TWL a formal information notice on23 October 2012 . On4 December 2012 Mr Goldie replied disputing that IR35 applied and that the information notice was required and requesting a meeting. HMRC responded to this on21 December 2012 but on receiving no response issued a penalty notice on15 January 2013 . (6) On 8 and15 February 2013 HMRC informed DTE that they intended to protect HMRC’s position by issuing determinations and notices that they were going to issue county court proceedings. There was a dispute over whether these were received by DTE/TWL. (7) On26 February 2013 DTE contacted HMRC to arrange a meeting on11 March 2013 which took place on that date. On25 April 2013 TWL appealed against the initial determinations. (8) On30 August 2013 , in response to a letter from DTE of20 June 2013 , HMRC informed DTE that they were having a meeting with the BBC on4 September 2013 regarding the points raised at the meeting of11 March 2013 . DTE objected to the meeting taking place without Mr Willcox in attendance. (9) On6 September 2013 the BBC provided HMRC with their contracts with TWL for the other periods (and it appears that that was the first time HMRC had received these). (10) On10 October 2013 DTE asked for copies of the notes of the meeting with the BBC. HMRC sent their notes to the BBC on16 October 2013 and informed DTE on21 October 2013 that the notes would be released once agreed with the BBC. On18 December 2013 HMRC sent a revised copy of the notes to the BBC for agreement and there was limited correspondence agreeing the notes. (11) On18 March 2014 , HMRC wrote to DTE noting they now had permission from the BBC to release the notes and enclosing a copy. They said that they proposed a voluntary settlement and requested computations for the later years. HMRC requested a response by25 April 2014 . (12) On28 May 2014 HMRC recorded in a file note that the HMRC officer had sought numerous times to contact DTE but had spoken to him on that day regarding whether Mr Willcox wanted to settle matters with HMRC or not. On21 August 2014 HMRC issued TWL with a warning letter in respect of the failure to operate PAYE. Following this TWL appointed different advisers who asked HMRC for copies of the meeting notes 672. In relation to AML: (1) In this case it appears that the discovery was probably made sometime in March or April 2013 following the BBC signing off on the notes of a meeting with HMRC or at any rate no later than24 June 2013 when the status opinion was then issued. As set out below, the meeting with the BBC took place on9 September 2012 and it is not entirely clear why there was such a delay in the BBC agreeing the meeting notes. It is reasonable to suppose, however, that HMRC realised that there was an insufficiency of tax at that point, as they were then in possession of the relevant information from both AML and the BBC notwithstanding that it took them some months to issue the status opinion. (2) Determinations were issued to AML for all relevant tax years initially on17 March 2014 . These were withdrawn on6 May 2015 and new ones were issued on2 October 2015 . Mr Peacock noted that when the new determinations were issued two years fell out of account (those for 2007/08 and 2008/09 which were determined at zero) and a determination for 2013/14 was added. Otherwise there was no meaningful difference in the two sets of determinations. (3) There was a delay, therefore, of as much as around 12 months between the discovery (on the basis that it took place in late March or April 2013) and the issue of the initial determinations on17 March 2014 and of over two years from that time until the issue of the new determinations on2 October 2015 . 673. The history of the correspondence is as follows in the period leading to the issue of the initial determinations on17 March 2014 . (1) On4 January 2011 , HMRC wrote to AML requesting a check of employer and contractor records and a breakdown of income shown in AML’s accounts for the period to31 March 2010 . JSC, the adviser to AML, wrote to HMRC providing the requested information on7 February 2011 . (2) On13 June 2011 , Mr Eades and Mr Simmonds of JSC met with HMRC. HMRC circulated notes of this meeting on27 June 2011 . There was correspondence on the notes in July and August 2011 following which HMRC issued revised notes on17 October 2011 . The officer apologised for the delay due to an extended period of sick leave. On4 November 2011 Mr Eades responded with a further comment on the notes which he signed. (3) On13 September 2012 , there was a meeting between HMRC and the BBC. The notes of this meeting were signed by HMRC shortly after. It appears that Ms Hockaday and Mr Roy did not sign the notes until 7 March and26 February 2013 respectively. There is no correspondence in the bundles relating to the intervening period. (4) On24 June 2013 , HMRC issued the status opinion to JSC. (5) In August to October 2013 there was correspondence and telephone calls between HMRC, Mr Eades and Mr Simmonds regarding the status opinion. JSC queried why they had not heard from HMRC until June 2013. In a letter of11 November 2013 HMRC apologised for the failure to keep JSC informed that they were taking technical advice and meeting with the BBC and of the delay in setting up that meeting and in obtaining the BBC’s sign off on the notes. They acknowledged that there was a period between October 2011 and June 2013 when they had not engaged with JSC but they had been engaged with the BBC. (6) On27 November 2013 HMRC put JSC on notice of their intention to issue the determinations on requesting a breakdown of the information that JSC had provided. JSC provided this on31 December 2013 . (7) On27 January 2014 HMRC sent its formal warning letter to AML. (8) On7 April 2014 AML lodged its appeals against the determinations and requested a review which took place by agreement over a period of several months and was concluded in September 2014. (9) Around that time HMRC recognised that the wording used in the NICs notices were defective and sought agreement to withdraw them and issue fresh notices. (10) On7 October 2014 in light of the additional information that AML then promptly provided, HMRC provided new deemed payment calculations and said that the existing determinations would need to be amended. On14 November 2014 HMRC stated that they were going to withdraw the existing determinations and re-issue them with updated figures and that they would correct the wording of the NICs notices. On18 November 2014 Mr Kirk, who had then been appointed to act for AML, wrote to give his agreement to this course. Mr Peacock noted that the determinations were withdrawn although there was not said to be anything actually wrong with them. (11) On2 December 2014 HMRC communicated that steps were being taken to vacate the determinations. There was a delay due to personal difficulties of an officer who had been handling the case but Mr Kirk was kept up to date. As set out above, the old determinations were not formally withdrawn until6 May 2015 and new ones were not issued until2 October 2015 . 674. Determinations were issued to PL for all relevant tax years (2007/08 to 2011/12) on6 September 2013 . We accept that the discovery was made when HMRC issued a status opinion that IR 35 applied on23 May 2013 . There was no contention that the discovery had become stale in the period of just over three months from the date of the status opinion to the issue of the determinations. Conclusion on “staleness” 675. We have concluded that the discoveries made by HMRC as regards AML and TWL had not lost their “essential newness” by the time the relevant determinations were issued. In our view, on the basis of the case law, this is not just a question of simply how much time has elapsed between the discovery and the issue of the determinations and whether the determinations could have been made sooner. The status of discussions and awareness of the likely issue of the determinations must be a relevant factor in assessing whether the issue remains “live” or has becomes “stale”. 676. We accept that, as Mr Tolley submitted, the evidence demonstrates that overall HMRC pursued their enquiries sufficiently actively that AML and TWL and their respective advisers cannot have been in any doubt, at any stage in the period from when the discovery was made until the determinations were issued (or re-issued in AML’s case), that HMRC were actively engaged and intended to proceed with the imposition of income tax (and NICs) on the basis of their status opinions. We note that in TWL’s case material delays were caused to some extent by a lack of engagement by DTE. Whilst in AML’s case there was a substantial delay in HMRC dealing with the withdrawal of the original determinations and the issue of the new ones, AML cannot have been in any doubt but that new determinations were to be issued. In each case, in all the circumstances, although the determinations were not issued as quickly as they might have been, the delay is not sufficient for the discovery made by HMRC to have lost any quality of “newness”
“I mean, absolutely not that I recall. But I can’t guarantee that’s not the case…I would never have thought an accountant should see your contracts, so but I don’t, I honestly don't know the answer”. 679. Ms Gosling subsequently used different accountants in relation to her own and PL’s position; by 2010 she was using Christopher Lunn & Co and, from 2011, HW Fisher and Company (“ HW Fisher ”). So far as she could recall she did not think she received advice from any of her accountants on IR35 until HMRC started their enquiries; that was the first time she heard of IR35 as a concept. Ms Gosling said that she just assumed that her accountants had never thought there was any question of her not being freelance because “everything that was ever coming from the BBC was describing me as a freelance. I felt like a freelance…there was never, in my mind…any reason to think I was anything other than freelance”
“if an individual demonstrates characteristics of an employee they will be offered a staff contract when their current contract expires”
“Are you a service company?” the answer given was “no”