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UT (Tax & Chancery) UT-2024-000044 - [2025] UKUT 00094 (TCC)
Fecha: 23-Ene-2025
A(1) Erroneous approach to and interpretation of “on an ad hoc as and when required basis”
A(1) Erroneous approach to and interpretation of “on an ad hoc as and when required basis”.
The express terms of the contract on how often Mr Thompson’s services were to be provided
Each contract between Sky and the Appellant consisted of: i) Key Terms; ii) Terms and Conditions; and iii) a Schedule (which although described as a Non-Disclosure Agreement, was a deed entered into between Sky and Mr Thompson directly, and which included the grant of rights, the giving of warranties, and Mr Thompson’s agreement to non-solicitation and non-compete clauses) (see [6]). There was no material difference in the terms of the two contracts.
There was no express statement recording the minimum or maximum time commitment required of Mr Thompson.
The terms “Assignment” and “Services” were defined in the Key Terms as follows:
Assignment The Assignment will be from 1st August 2013 to 31st July 2015 on an ad hoc as and when required basis …
Services The Company shall provide the services of the Personnel as a commentator, presenter, interviewer, guest and/or other participant in the making of any editorial programme and/or video whether in vision or audio and/or whether in a studio or on location, live or recorded during the Assignment…
[emphasis added]
By clause 2.1 of the Terms and Conditions, the Appellant was required to procure that Mr Thompson provided “the Services” to Sky “during the Assignment …”. Clause 2.6 required the Appellant to procure that Mr Thompson shall travel to and perform the Services “at any destination both inside and outside the Territory and at such time and dates (including bank holidays and weekends and anti-social hours) as may be required by BskyB”.Clause 2.7 provided that Sky had “first call” on Mr Thompson for the provision of the Services. Clause 5.1 provided for termination of the contract by Sky if services were not provided for a period in excess of 4 weeks.
- Heading
- INTRODUCTION
- THE LAW
- THE FTT DECISION AND THE EVIDENCE
- The background leading up to Mr Thompson’s work for Sky before 2013
- The contracts with the Appellant company and their operation from 2013
- THE GROUNDS OF APPEAL
- A(1) Erroneous approach to and interpretation of “on an ad hoc as and when required basis”
- The FTT Decision
- The Appellant’s submissions
- Discussion and Analysis
- A(2) Erroneous approach to interpreting “all directions and requests…will be complied with”
- The FTT Decision
- The Appellant’s submissions
- Discussion and Analysis
- A(3) Erroneous construction of the provision relating to travel and destination
- The FTT’s Decision
- The Appellant’s submissions
- Discussion and Analysis
- B(1) Wrong approach to establishing hypothetical contract
- The FTT’s Decision
- The Appellant’s submissions
- Discussion and analysis
- (B2) Failure to take into account relevant evidence
- Discussion and Analysis
- (B3) Approach to the “informal arrangements” evidence
- Discussion and analysis
- (B4) Reasonableness not a permissible shortcut
- Discussion and analysis
- The FTT’s decision as to whether the necessary framework of control existed was wrong in law The FTT Decision
- The Appellant’s submissions
- Discussion and analysis
- The FTT’s application of the third stage of the employment test was wrong in law
- 68(1) “The control set out above was considerable. In particular Sky’s…right to require Mr Thompson’s performance of the services at location of their choosing is consistent with an employment relatio
- Discussion and analysis
- 68(2) “Mr Thompson’s role as a pundit and a guest giving his own opinion does not tend against the hypothetical contract being an employment contract.”
- Discussion and Analysis
- 68(3) “The manner in which Mr Thompson prepared for and provided these services is not inconsistent with an employment relationship. The same is true of the fact that Mr Thompson would leave as soon a
- Discussion and Analysis
- 68(4) “The fact that Mr Thompson’s opinions and analysis remained his does not affect the employment relationship. Crucially, the hypothetical contract restricted Mr Thompson’s ability to exploit thos
- Discussion and Analysis
- 68(5) “The hypothetical contract provided for termination by Sky but not by Mr Thompson.”
- Discussion and analysis
- 68(6) “Whilst Mr Thompson had his own status and character as a result of his expertise and professional background, he had become associated with Soccer Saturday. This was recognised in the wording o
- Discussion and Analysis
- 68(7) “The fact that the payment was paid as a block fee regardless of air time is neutral. Whether this is a salary or a fee depends upon whether the arrangement was an employment contract or not rat
- Discussion and Analysis
- 68(8) “It is right that Mr Thompson’s work for Sky took up a relatively small amount of his time and that this was one method of capitalising on Mr Thompson’s own status and character. However, this m
- Discussion and Analysis
- 68(9) “The fact that Mr Thompson had the potential to increase his income through the efficient use of his time is neutral. This is saying no more than the fact that Mr Thompson could earn money from
- Discussion and Analysis
- Overall assessment lacking in logic and outside the reasonable range
- Discussion and analysis
- Conclusions