UT (Tax & Chancery) UT-2024-000044 - [2025] UKUT 00094 (TCC)

We do not accept that this reveals an error of law on the part of the FTT.

In Barnes UT, the FTT had found that Mr Barnes could profit from the sound management of his business through efficient use of his time. At [91] of that the decision, the Upper Tribunal agreed with HMRC’s submissions (which relied in part on the FTT’s decision in this case) that that was an error of law. It said, “We agree with Mr Stone that [this factor] was not, as a matter of principle, a pointer away from employment under the hypothetical contract.”

Even if it may be a factor that can point against employment in some cases, the FTT was entitled to find it was not so in this case but was neutral. The FTT had already partly addressed Mr Thompson’s opportunity to profit at [68(8)] when considering the other work commitments he enjoyed and recognising the reality that this was his only broadcasting contract and at [68(10)] that he was not exposing himself to any financial risk under the contracts. An employee can serve more than one employer or can be employed by one employer but be in business on their own account in relation to other clients as recently affirmed in Red White & Green Ltd v Revenue & Customs Commissioners [2023] UKUT 83 (TCC) at[137(2)]. In our view there is plainly no error in the FTT’s decision, on the facts of this case, in terms of balancing the weight to be afforded to the limited services provided to other clients concurrently with services to Sky.