Upper Tribunal Tax and Chancery Chamber

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

Fecha: 25-Abr-2024

Factor (6)

Factor (6)

78.

FTT[134(6)] stated as follows:

(6)

Mr Barnes had much latitude in stating his availability to cover live matches for Sky. The conduct between the parties in drawing up booking schedules of Mr Barnes’ time would appear to be by gentlemanly consensus, with Sky being reasonable in its requests, and Mr Barnes exercising his leeway of refusal pursuant to the express term under Key Terms (c1.1) on ‘variations’ agreed between the parties from time to time. There was the long-standing understanding between the parties that Mr Barnes would be unavailable to Sky during the Six Nations season, and the World Cup tournament, although he could be requested for interviews by Sky Sports News. What Sky lost in terms of Mr Barnes’ availability was gained in return through the publicity of having one of its regular commentators as a columnist of these high-profile games, which in turn reflected well on Sky as the broadcaster with the exclusive right to Mr Barnes’ services.

79.

As explained above, it is in our view unclear whether non-written variations to the Contracts were permitted by the terms of clause 1.1 of the Key Terms, but we do not consider that question is material to the findings of fact underpinning Factor (6). Since we have dismissed HMRC’s appeal under Ground 1, it follows that the FTT’s findings of fact in relation to Factor (6) stand.

80.

Mr Stone argued that a co-operative relationship is not inconsistent with an employment relationship, and such a relationship has been found to exist in a number of IR35 decisions which have found that the relationship would have been one of employment.

81.

We agree with Mr Stone that the mere existence of a co-operative working relationship does not of itself point away from employment. However, Factor (6) goes further than referring to co-operation, because it describes the working agreement with Sky as to Mr Barnes’ availability to perform services under the hypothetical contract. In our view, this is a factor which is, as matter of principle, a pointer away from employment, in particular as it goes to the extent of control, which is a relevant circumstance at the Third RMC Stage.