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UT (Tax & Chancery) UT-2024-000044 - [2025] UKUT 00094 (TCC)
Fecha: 23-Ene-2025
(B2) Failure to take into account relevant evidence
(B2) Failure to take into account relevant evidence
Appellant’s submissions
Mr Firth submits that the FTT failed to take into key evidence of Mr Thompson, including that relating to 2005, which provided good evidence as to what would have happened in the hypothetical negotiation:
“[8] I remember the discussion about my signing a contract with Sky well. Sky had put on a private plane to take the people, including myself, covering the 2005 Champions League final between Liverpool and AC Milan, to Istanbul in Turkey. We were flying back after the game and I spoke to Andy Melvin, Sky’s head of football and no.2 in the Sky Sports hierarchy. He asked what I was going to do next year and said that he would like me to come on contract with Sky. He said that Sky would pay me £80k and that I could do what I wanted, pick my shows – the figure was there for me. I agreed.” [150]
He contended that the evidence that Mr Thompson had been told, when agreeing the first contract, back in 2005, that he could do what he wanted, pick his shows was highly relevant to the determination of the hypothetical contract.
Mr Firth also suggested that the FTT had failed to take into account further unchallenged evidence in Mr Thompson’s witness statement at (10)-(13):
The contract refers to me providing services on an ad hoc, as and when required basis by Sky. Although the agreement does not say so, I could not and would not have worked 9 – 5, even if Sky had asked me to.
In practice, what I understood was that I would be mainly doing the Soccer Saturday show. I also did some mid-week work, providing punditry on mid-week matches from time to time – around 10 to 15 a year.
There was a lot of flexibility about the way the arrangement worked. If I had personal or other business arrangements which coincided with the Saturday show, I did not need to ask for permission from Sky to miss the programme but did give them notice when I would be unavailable so that they could ensure they had a replacement. Examples of when that might happen would be weddings and similar for family and close friends. I would only do the mid-week punditry if I was free to do so.
Whilst I knew that if I did not want to do/could not do a show, it would not be a problem, I tried to keep these absences low in line with the professional attitude that I have displayed throughout my working life. I also enjoy doing the Soccer Saturday show and would be unlikely to have had the contract renewed if I had a lot of absences.
Likewise, he submitted that the FTT failed to take into account IC’s evidence which was consistent. IC, the producer of Soccer Saturday for Sky, explained in his witness statement (5) that in these early years, each time that a pundit came to the studio to do a show they would have to sign a contract and issue an invoice to Sky and wait to be paid. There were significant problems dealing with the large volume of paperwork this produced and ensuring that people got paid – paperwork would get lost and things would be missed. After a while, Sky decided that it would be simpler to have a single contract for people that they were using most regularly, with those persons putting in a monthly invoice (6) – (7). IC confirmed that that the contract simplified the invoicing side of things but how it operated in practice remained the same and “it was made explicitly clear that the person did not have to do a certain number of shows – if they were available, great, if they had something else to do, that was fine” (8). If a guest had done only a few shows, the upshot would have been that they would not have been offered a new contract (11).
Mr Firth submitted that this was all unchallenged evidence from both sides of the contractual fence. At the very least, the FTT’s conclusion on this matter “might” have been different if it had applied the correct test and addressed this evidence.
- 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