UT/2020/000377 - [2024] UKUT 00099 (TCC)

First, he says that, in interpreting the actual written contracts as containing no obligation upon the end clients to offer work to Mr Alcock or for Mr Alcock to accept the work offered, the FTT failed to interpret the contracts in the context of their commercial reality. Instead, the FTT engaged in a search for express terms containing obligations to offer and accept work without regard to the true nature of the bargain reached between the parties, which was for the end clients to engage Mr Alcock to work full-time on identified projects for a fixed term.

Second, he says that the FTT applied a concept of mutuality of obligation that was contrary to the principles established in the case law. In particular, the FTT incorrectly and contrary to authority (in particular, the Court of Appeal decision in HMRC v Professional Game Match Officials Limited [2021] EWCA Civ 1370 (“PGMOL”) found that: (i) the right of an employer to terminate a contract at will was incompatible with mutuality of obligation (FTT [325] – [326]); and (ii) the lack of a contractual guarantee of a minimum number of hours of work was indicative of insufficient mutuality of obligation (FTT [353]).

He says the FTT expressly found that the absence of any obligation to offer work or undertake work outside the periods covered by the contracts was not a relevant consideration (FTT [51]). Rather the FTT found that there was no obligation on the end clients to offer work and Mr Alcock had a right not to accept work offered during the periods of the assignments (FTT [129] – [130], FTT [170] – [173]).

The FTT followed case law authority, including PGMOL, and applied the relevant tests to the individual assignments (e.g. FTT [345]).

HMRC’s submissions were a challenge to an evaluative judgment of the FTT. The FTT’s conclusions were not perverse and so should not be disturbed on appeal.