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

Initially, Mr Thompson provided his services directly to Sky, but in 2013 the Appellant was incorporated, and, in the relevant period, services were provided to Sky (as well as others) through the Appellant ([6]).

There are two contracts between the Appellant and Sky covering the relevant period. One dated 11 June 2013, covering the period from 1 August 2013 to 31 July 2015, and one signed in June 2015, covering the period from 1 August 2015 to 31 July 2017.

Arrangements for the programme were relatively informal ([10]). Mr Thompson’s view was that he did not need permission from Sky to miss a programme but he would in practice give notice if he was unavailable so that Sky could obtain a replacement [10]. Mr Thompson would inform Ian Condron (“IC”), Soccer Saturday’s producer, if he was not available out of respect, and IC would agree ([10]). In practice, Mr Thompson rarely missed a programme. IC’s evidence as to the way in which the contract worked in practice was consistent with Mr Thompson’s ([16]).

Mr Thompson’s preparation largely involved him watching football matches during the week. He would receive a pack of statistics, but that was for information purposes rather than Mr Thompson being told to say anything in particular on the programme ([11]). The format of the show was three hours of general discussion, following which the panellists would put on headphones and discuss features of a live match as they arose. These were the panellists’ own opinions rather than commentating ([12]). The Host, Jeff Stelling, would lead the discussion.

Mr Thompson did not wear an earpiece to receive instructions and would not be given any direction other than the floor manager signalling to him to wrap up ([12]). Mr Thompson would usually be filmed at Sky’s studios in London. On occasion, he was asked to go to Anfield to cover a big story relating to Liverpool. If Mr Thompson was available, he would agree ([13]).

On average about 80% of the Appellant’s income came from Sky. Other activities included work for Sky Betting and Gaming, speaking engagements, tours of Liverpool’s stadium, television interviews with LFC’s television channel ([14]). Mr Thompson would seek Sky’s permission if he was going to do anything for another broadcaster. IC would say no if it related to the Premier League, but a show looking back at Mr Thompson’s career would be fine ([14]).

The terms of the actual contract between Sky and the Appellant company governed the manner in which the Appellant was to provide Mr Thompson’s services to Sky. The FTT decided that the terms of the actual contract reflected the terms of the written agreements ([45]) with the following additional points.

The Key Terms provided that the Services were to be provided to Sky “On an ad hoc as and when required basis”. This did not give the Appellant or Mr Thompson a right to refuse any request or that appearances would be by mutual agreement ([46]). Instead, it meant the services “were to be provided whenever Sky required them”.

To avoid the conclusion that Sky was entitled to require services every hour of every day, the FTT found that there was an implied term of reasonableness ([47]).

The contract was not too vague – Sky was entitled to have the services “as and when Sky requires” ([49]).

Sky had the contractual right to require Mr Thompson to express opinions which he did not believe ([50]) but that was subject to a further implied term of reasonableness ([51]), which may in practice amount to the same thing.

Mr Thompson did not have any right to object to the location of the required provision of the services, but that, too, was subject to an implied term of reasonableness ([52]).

As to the terms of the hypothetical contract between Sky and Mr Thompson, the FTT transposed the terms of the actual contract between Sky and the Appellant with the following modifications.

The services would be provided by Mr Thompson in his own right ([56]).

The services would be Soccer Saturday, mid-week games, associated marketing and publicity events, and relevant interviews ([57)].

The implied terms of reasonableness would be express terms because they were “so obvious as to go without saying” ([58]).

Mr Thompson would not have the right to refuse any request to provide services because that is not what the actual contract said and “there is no basis for establishing that a different agreement would be reached in the event of a hypothetical contract” ([59]). Mr Thompson signed the Schedule and there was “no reason to believe that a direct negotiation…would have resulted in substantially different terms” ([59]).

What happened in practice did not “detract from those contractual rights and there is no suggestion that there was any agreement that those contractual rights did not apply or were varied” ([60]).

Given that Mr Thompson agreed to the actual contract on behalf of the Appellant company, it was reasonable to assume that no term requiring his agreement regarding location would be provided in the hypothetical contract ([61]).

Mr Thompson signed the Schedule and so the terms of the actual agreement must have been agreeable to him, as well as Sky ([62]).

Preparatory work could be carried out at places and times and for durations of Mr Thompson’s choosing ([64]). Mr Thompson would be expected to fit his punditry into the running order of the programme and follow reasonable directions as to the subject matter, but the content would be determined solely by Mr Thompson ([64]).

As to whether the hypothetical contract was a contract of employment, the FTT found as follows.

In relation to RMC1, the FTT found that “Mr Thompson’s obligation under the hypothetical contract would be to provide the services in accordance with the terms of the contract, and Sky’s obligation would be to pay the agreed fee” ([66]). The Appellant submits that this is an issue that relates to whether a contract is an “overarching” contract of employment, being an issue that is irrelevant to this appeal. Nonetheless, the Appellant accepted that mutuality of obligation was satisfied on the basis that some work was done and paid for.

In relation to RMC2, the FTT found a sufficient framework of control necessary for employment on the basis of ([67]) that: Sky had the right to decide when and where the services were to be provided; Sky had the right to prevent Mr Thompson working for competitors; and Sky retained control over confidential information and intellectual property arising out of the services (albeit not Mr Thompson’s opinions).

In relation to RMC3, the FTT found that all the circumstances meant that the hypothetical contract would have been one of employment of Mr Thompson by Sky [68]: