Upper Tribunal Tax and Chancery Chamber

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

Fecha: 25-Abr-2024

Factors (1) and (2)

Factors (1) and (2)

65.

These were set out at FTT[134(1) and (2)]:

(1)

There is a distinction between a presenter and a commentator in the broadcast of a live match. Mr Barnes started as a presenter with Sky, but moved to become a commentator. During the relevant period, the principal services provided by Mr Barnes to Sky as a co-commentator in live matches were punditry in nature, which I find to be qualitatively different from those provided by Miles Harrison as a presenter.

(2)

Mr Harrison was the ‘first voice’ and provided the running commentary of a match, while Mr Barnes was the ‘second voice’ giving the analytical insights on the good and bad moments of a game, from team strategy to the execution of moves by individual players. Mr Harrison would be on air most of the time, while Mr Barnes’ commentary would come in at the appropriate moments and would often be accompanied by co-ordinated replays.

66.

The FTT is here pointing out the distinction that Mr Barnes’ role was as a pundit providing occasional expert comments, by contrast to Mr Harrison, who was the lead commentator for a match. We note that although the FTT described Mr Harrison as a “presenter”, Sky described him as a commentator: at FTT[46], Sky’s response to being asked to comment on the respective work arrangements of Mr Harrison and Mr Barnes was recorded as follows:

[A]: The working arrangements are similar but Miles and Stuart carry out different roles. Miles is a “lead commentator” who describes the action onscreen; the “who” and the “what”. Stuart’s role is to analyse the “how” and the “why” and provide the context of the action.’

67.

The FTT did not indicate, explicitly or implicitly, why it considered that this point was relevant to the question of whether the hypothetical contract would have been one of employment.

68.

The distinction would have meant that Mr Barnes would speak for less time than Mr Harrison during a match, and the different role he was performing might arguably have required a type of expertise or experience not possessed by Mr Harrison. Mr Collins suggested that the first two factors were relevant to the FTT’s finding elsewhere that Mr Barnes was carrying on an enterprise of being “Stuart Barnes, the voice of rugby”: FTT[134(9)].

69.

HMRC said that (1) a requirement to deploy individual skill and personality is frequently present in a contract of employment: see, for example, Market Investigations at 188B, (2) Mr Barnes was engaged under the hypothetical contract to provide various services, not just punditry, and (3) in PD & MJ Limited v HMRC [2024] UKFTT 00038 (TC) (“PD”) the FTT rejected the submission that the fact that a sports pundit gives his own opinions in television commentary is inconsistent with employment status.

70.

In our opinion, the first two factors were, as a matter of principle, not factors pointing away from employment. We do not know from the Decision what point the FTT had in mind here, but we consider that there was no rational basis on which the difference in the roles performed by Mr Barnes and Mr Harrison during a match commentary suggested that the hypothetical contract was less likely to be one of employment. As the Court of Appeal put it in Atholl House, at [128], “It is not the activities that matter but the capacity in which, and the conditions under which, they are performed.”