Upper Tribunal Tax and Chancery Chamber

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

Fecha: 23-Ene-2025

The FTT’s decision as to whether the necessary framework of control existed was wrong in law The FTT Decision

The FTT’s decision as to whether the necessary framework of control existed was wrong in law

The FTT Decision

159.

As noted above, at [67] of the Decision the FTT found a sufficient framework of control in the hypothetical contract between Sky and Mr Thompson on the basis that Sky had the right: (1) to decide when services were to be provided and this would be on a first call basis without Mr Thompson having a right of refusal; (2) to decide where the services were to be provided; (3) to prevent Mr Thompson working for competitors; and (4) to control confidential information and intellectual property arising out of the services (albeit not Mr Thompson’s opinions).

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