Upper Tribunal Tax and Chancery Chamber

UT/2023/000068 - [2024] UKUT 00262 (TCC)

Fecha: 25-Abr-2024

Factor (3)

Factor (3)

71.

This was set out at FTT[134(3)]:

(3)

Without Mr Barnes’ analytical input, the live commentary of a match with only the first voice would be all the duller, and unlikely to attract as many viewers as a live match with punditry input. In fixing the annual fee payable to Mr Barnes, Sky did not stipulate the minimum days of services, only the maximum. In real terms, the number of days Mr Barnes would appear on air for Sky varied from 90 to 120 days. Taking 120 days as the benchmark, it means Mr Barnes could be working 25% less than the benchmark maximum without any issue being raised by Sky. I do not consider the annual fee resemble a ‘salary’ in nature as submitted for the respondents. I find the annual fee to be a block fee, for the exclusive right to have first call of Mr Barnes’ services for a period of time. To ensure that Mr Barnes’ services would not be made available to another UK broadcaster, Sky was content to pay a premium for the assurance of exclusive right, in full knowledge that Mr Barnes’ availability on air could vary up to 25%, as reduced by the duration of 6-8 weeks the World Cup tournament.

72.

The FTT appears to have considered that the fee payable by Sky did not resemble a “salary” in nature because the contract did not stipulate the minimum days of service; that it was relevant that Sky were prepared to pay a premium for the exclusive right to Mr Barnes’ services, and that it was relevant that Sky were aware that Mr Barnes could appear on air for less than the maximum period under the contract.

73.

Mr Stone said in his skeleton argument that “payment of a fixed fee in equal monthly instalments, paid irrespective of days worked…was consistent with employment status, and certainly not inconsistent with it”. We agree. The fact that the payments received under the hypothetical contract effectively had some characteristics of a retainer was not, as matter of principle, indicative that the relationship was not one of employment. Nor was Sky’s awareness that in practice Mr Barnes might not be called on to appear on air to the full extent of Sky’s entitlement under the hypothetical contract. Those factors were in our view equally consistent with a contract for service and a contract for services.