“49. Engagements to which this Chapter applies (1) This Chapter applies where (a) an individual (‘the worker’) personally performs, or is under an obligation personally to perform, services for another person (‘the client’). ... (b) the services are provided not under a contract directly between the client and the worker but under arrangements involving a third party (‘the intermediary’), and (c) the circumstances are such that (i) if the services were provided under a contract directly between the client and the worker, the worker would be regarded for income tax purposes as an employee of the client or the holder of an office under the client, or (ii) the worker is an office-holder who holds that office under the client and the services relate to the office. ... (4) The circumstances referred to in subsection (1)(c) include the terms on which the services are provided, having regard to the terms of the contracts forming part of the arrangements under which the services are provided.”
“6. Provision of services through intermediary (1) This Part applies where (a) an individual (‘the worker’) personally performs, or is under an obligation personally to perform, services for another person (‘the client’) who is not a public authority. ... (b) the performance of those services by the worker is carried out, not under a contract directly between the client and the worker, but under arrangements involving an intermediary, and (c) the circumstances are such that, had the arrangements taken the form of a contract between the worker and the client, the worker would be regarded for the purposes of Parts I to V of the Contributions and Benefits Act as employed in employed earner’s employment by the client. (2) Paragraph (1)(b) has effect irrespective of whether or not (a) there exists a contract between the client and the worker, or (b) the worker is the holder of an office with the client. ...”
“[36] The factor which complicates the issue in this case is that in the chain of contracts NES is interposed between Usetech and ABB. The structure primarily contemplated by the legislation seems to me to be one where there are two contracts: the first is a contract of service, written or oral, between the worker and his one-man service company (the equivalent of Usetech), and the second is a contract between the service company and the end user (the equivalent of ABB) for the service company to furnish the personal services of the worker to the end user. In a case which is as straightforward as that I think that the contents of the notional contract between the worker and the end user will be fairly obvious: 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.”
“[69] A further legal issue is what degree of control is necessary. At this stage, all I need to say is that I agree with the UT that the FTT directed itself correctly in para [16] on the criterion of control. The FTT referred to a statement in para [19] of Montgomery v Johnson Underwood Ltd[2001] EWCA Civ 318 ,[2001] IRLR 269 ,[2001] ICR 819 that there must be a ‘sufficient framework of control’ ... in the sense of ‘ultimate authority’ ... rather than there necessarily being day-to-day control in practice’. ...”
“[84] At [78], the UT held, on the FTT’s findings of fact, that Talksport could control ‘where’ and ‘when’ Mr Hawksbee performed his duties and that it had material rights of control over ‘what’ tasks Mr Hawksbee performed because it had the ultimate right to decide on the form and content of a particular programme. The fact that, in practice, Talksport was content to give him a high degree of autonomy did not alter that conclusion as the control test focuses on the right of control and not how, or if, that right is exercised: see Langstaff J in Wright v Aegis Defence Services (BVI) Ltd (2018)UKEAT/0173/17/DM . The fact that Talksport had little control over how Mr Hawksbee presented the programmes put him in the same category as other highly skilled people, such as a surgeon or a footballer, but did not prevent the existence of a sufficient framework of control for these purposes. The UT concluded that such framework of control would exist in the case of Talksport and Mr Hawksbee. [85] This conclusion represented an evaluative judgment on the part of the UT, and KPL must show that it made some error of principle or had regard to irrelevant factors or disregarded relevant factors, or that it was perverse, before this court will interfere with it. [86] KPL submitted that the UT failed to appreciate that control over ‘where and when’ was given little weight by the FTT, and should have been given little weight by the UT, because Mr Hawksbee could only provide his services if he was in the studio, and at the time, specified by Talksport. It may be noted that under the contracts Talksport was entitled to change the times and dates of the programmes but, in any event, I can detect no sign in the UT’s decision that it was unaware of the FTT’s approach or that the UT itself gave undue weight to control over the ‘where and when’. [87] KPL further submitted that the UT misinterpreted the importance of ‘the ultimate right to decide’ in RMC. Talksport had control over the content of a programme but not control over Mr Hawksbee in the performance of his services. The UT accepted that Talksport had little practical control over ‘how’ Mr Hawksbee performed his services, by which must be meant how he presented programmes but, as the UT remarked, this is no different from other highly skilled people performing services. The right to control the content of the programmes is highly material to the question of control. Indeed, as it seems to me, it may be said that the right to control the content of the programmes gave Talksport appreciably more control over the provision of Mr Hawksbee’s services than, for example, a hospital trust has over the provision of the services of its surgeons. [88] KPL also submitted that, as regards control over ‘what’ services were performed by Mr Hawksbee, the UT did not take account, or even went against the FTT’s unchallenged finding, that it was ‘relatively narrow’ in comparison to the BBC’s control over what services were provided by a different presenter in Christa Ackroyd Media Ltd v Revenue and Customs Comrs[2019] UKUT 326 (TCC) ,[2019] STC 2222 . The UT did not ignore the narrow range of Talksport’s control in this respect, but it is clearly not decisive against an employment relationship, and it was for the UT to decide the weight to be given to it. [89] It must be borne in mind that control is a necessary, but not necessarily a sufficient, condition for the existence of an employment relationship. There may well be a framework of control which, by a greater or lesser margin, is sufficient for these purposes but will not, when all other relevant factors are assessed, be sufficient to establish employment.”
“[49] We respectfully agree with the approach of the Upper Tribunal in Atholl House. This aspect of its decision was not before the Court of Appeal. In short, control over what is to be done is an important factor but control over how, where and when services are to be performed remains relevant. ... [52] Again, we respectfully agree with that conclusion. Further, in the present case, whilst there was no right of deployment as such, as the FTT noted there were rights to require Mr Holmes to carry out promotional work as and when reasonably required and without further payment. There was also a contractual right for ITV to require Mr Holmes to present This Morning on such dates and locations that it notified to Mr Holmes at its sole discretion. Those were relevant rights of control. [53] In the context of radio and television presenters, the authorities establish that editorial control is a relevant factor. Indeed, in Kickabout the Court of Appeal described it as being “highly relevant”
“[61] I will below review some of the authorities and the way they have developed. From this review, I have reached a number of conclusions relevant to this appeal. First, there is not a dichotomy between the RMC test on the one hand and the approach in Hall v Lorimer and the line of authorities of which it is part on the other. They do not represent significantly different tests for determining employment. Second, the question posed in Hall v Lorimer and other authorities as to whether a person is in business on their own account is, for the most part, simply another way of asking whether they are an independent contractor. If the evidence establishes that they do in fact conduct a business on their own account, quite apart from the engagement in dispute, that may be a relevant factor in the determination of the issue – a point to which I will return. But, as used in the authorities, that is not the situation to which this phrase is generally applied. See in this respect the observation of Dillon LJ in Nethermere (St Neots) Ltd v Gardiner[1984] IRLR 240 ,[1984] ICR 612 , which I set out below when referring to that case. Third, the factors to which a court or tribunal can have regard when assessing whether a contract is a contract of employment or a contract for services are not confined only to the terms of the contract and the effects of those terms. ... [122] In my judgment, this review of the authorities bears out the propositions which I earlier stated. It is wrong to treat RMC and the line of cases including Hall v Lorimer as representing two separate tests, with the possibility that the result in any particular case could depend on which test is applied. Both approaches recognise mutuality of obligation and the right of control as necessary pre-conditions to a finding that a contract is one of employment. Once those necessary, but not necessarily sufficient, conditions are satisfied, both approaches require the identification and overall assessment of all the relevant factors present in the particular case. In other words, they are both multi-factorial in their approach. A strict reading of the third condition in the RMC test might exclude consideration of any factor beyond the express and implied terms of the contract, and this is certainly the way that it has been interpreted in some of the authorities. There are, however, many other authorities in which a wider range of factors was taken into consideration and indeed, as recently as 2012, HMRC were successfully inviting the Upper Tribunal to do just that: Matthews v Revenue and Customs Comrs. [123] The more difficult question, in my view, is not whether other factors can be taken into consideration but what limit there is on the choice of such factors. For this, there must be a return to first principles. The relationship of employment is created by the employer and employee through the contract made by them. The question for the court or tribunal is whether, judged objectively, the parties intended when reaching their agreement to create a relationship of employment. That intention is to be judged by the contract and the circumstances in which it was made. To be relevant to that issue any circumstance must be one which is known, or could reasonably be supposed to be known, to both parties. Those circumstances are the same as those comprising the factual matrix admissible for the interpretation of contracts: the ‘facts or circumstances which existed at the time that the contract was made, and which were known or reasonably available to both parties’ (Arnold v Britton[2015] UKSC 36 ,[2016] 1 All ER 1 ,[2015] AC 1619 (at [21])). [124] If the person providing the services is known to carry on a business, profession or vocation on their own account as a self-employed person, it would in my judgment be myopic to ignore it, when considering whether or not the parties intended to create a relationship of employment. In many of the cases, it has been taken into account for that purpose. The weight to be attached to it is a matter for the decision-making court or tribunal. If the contract provides, as did Ms Adams’ contracts with the BBC, that she was a freelance contributor, the relevance of this fact arises directly from the contract’s express terms.”
“[115] While each Contract served as the framework agreement for the relevant period between the parties, I find that the parties did not intend the Contracts to be the exclusive record of the terms of their agreement. There was tacit understanding between the parties as to the practical aspects of the outworking of the contractual terms. For instance, the Contracts did not provide for the basis of the 228 days when Mr Barnes’ services would be required, nor for the protocol whereby Mr Barnes would be allowed to give priority to high-profile tournaments such as the World Cup and the Six Nations over Sky’s right to call on his services. [116] 116. In Carmichael v National Power Plc[1999] UKHL 47 ,[1999] 1 WLR 2042 , Lord Hoffmann’s guidance is that ‘when the intention of the parties, objectively ascertained, has to be gathered partly from documents but also from oral exchanges and conduct’, then the terms of the contract are a question of fact. In line with this guidance, the terms of the Contracts in the present case are a question of fact, based on my finding that the terms of agreement between the parties are to be gathered partly from documents, and partly from their conduct.”
“[43] Finally I should say a word about a decision of a differently constituted Tribunal concerning a product called Pringles Dippers (2003) VAT Decision 18381. It was decided that this was zero-rated. Part of the decision was devoted to the question of whether a Pringle Dipper was “made from the potato.”
“[44] Second, there is a certain irony in Mr Baig’s submission that I am not bound by Judge Mosedale’s decision in First Class Communications (as to which he is correct), yet he refers me to various other decisions of the First-tier Tribunal (such as Dreams and JSM Construction) in support of his submissions both in relation to recategorization and the extension of time for the service of the costs regime opt-out notice. Although not cited to me, I would note the comments made by Judge Brooks in Ardmore Construction Limited v HMRC[2014] SFTD 1077 at [19] that decisions of the First-tier Tribunal: […] constitute persuasive authorities which would be expected to be followed by the FTT. For example in HMRC v Abdul Noor[2013] UKUT 71 (TCC) the Tax and Chancery Chamber of the UT, in relation to the decision of one High Court Judge on another (but equally applicable in the case of any persuasive authority), said, at [82]: “[…] although the decisions were not binding on him in the way that a decision of the Court of Appeal would be binding, the decision of a High Court Judge ought to be followed by another [High Court] judge unless that judge thinks that the earlier decision was clearly wrong”
“I can only say for myself that I think the modern practice, and the modern view of the subject, is that a judge of first instance, though he would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity.” […] constitute persuasive authorities which would be expected to be followed by the FTT. For example in HMRC v Abdul Noor[2013] UKUT 71 (TCC) the Tax and Chancery Chamber of the UT, in relation to the decision of one High Court Judge on another (but equally applicable in the case of any persuasive authority), said, at [82]: “[…] although the decisions were not binding on him in the way that a decision of the Court of Appeal would be binding, the decision of a High Court Judge ought to be followed by another [High Court] judge unless that judge thinks that the earlier decision was clearly wrong” “I can only say for myself that I think the modern practice, and the modern view of the subject, is that a judge of first instance, though he would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity.”