Case No. IP-2018-000134

133.The alleged liability of TCL, either as employer or agent of Mr La Gette and Mr Bishop adds nothing. Neither allegation was pursued in any rigorous detail. I will deal with each briefly. 134.On the evidence the arrangement between TCL and its franchisees was that franchisees each create their own business, operating under the TCL name with technical and administrative support, benefiting also from TCL’s marketing efforts. In return 40% of the franchisee’s profits go to TCL. The franchisees do not bind TCL in relation to their business dealings with their clients. I am not persuaded that the franchisees are agents of TCL. 135.With regard to the suggestion that the franchisees are employed by TCL, I was referred to the judgment of Ward LJ in E v English Province of Our Lady of Charity [2012] EWCA Civ 938; [2013] QB 722, at [70]: “The cases analysed in the immediately preceding paragraphs should be noted with a view to abstracting from them, if it is possible, the essence of being an employee. To distil it to a single sentence I would say that an employee is one who is paid a wage or salary to work under some, if only slight, control of his employer in his employer’s business for his employer’s business. The independent contractor works in and for his own business at his risk of profit or loss.” 136.Neither Mr La Gette nor Mr Bishop is paid a wage or salary by TCL. They work in and for their own business. While it true that TCL shares a risk as to the profit they make, the principal risk is that of Mr La Gette and Mr Bishop. TCL shares no risk at all as to any loss. I take the view that neither is employed by TCL. This is consistent with a finding by HMRC in 2016 in connection with an investigation into eligibility for a VAT Flat Rate Scheme.