ESM7340 - Case Law: Red, White and Green Limited V Revenue and Customs

Point at issue.

Whether the relevant aspects of the intermediaries legislation, commonly known as IR35, contained in sections 48 to 61 of the Income Tax (Earnings and Pensions) Act 2003 (“ITEPA 2003”) and in the Social Security Contributions (Intermediaries) Regulations 2000 (the “Regulations”) applied to the services Eammon Holmes provided to ITV as a presenter of This Morning via his personal service company Red, White and Green Ltd.

The FTT found that the intermediaries legislation was engaged because under the hypothetical contract Mr Holmes would have been an employee of ITV. This appeal to the UT challenged the FTT decision, stating that the FTT erred in law when determining that Mr Holmes would have been an employee of ITV pursuant to the hypothetical contract.

Facts

Eamonn Holmes is a well-known journalist, television and radio presenter.

During the relevant tax years, 2011-12 to 2014-15, Red White and Green Ltd (the appellant) agreed four contracts with ITV for the provision of Mr Holmes’ services as a presenter of ‘This Morning’. Each contract was for a period of approximately 1 year, with short gaps in between. Mr Holmes presented ‘This Morning’ for between 45 and 92 weekdays per year over the relevant period, with 21 or 22 “weekend links” in 2011-12.

Mr Holmes’ role was that of the “anchor” presenter. He had considerable autonomy over the way in which he presented the programme, using his own presenting style and words.

Mr Holmes rendered his personal services on an exclusive basis during the specified period and was entitled to a fixed fee for each show performed, payable on completion of each engagement.

The written contracts with ITV reflected that Mr Holmes would not agree any contract or professional commitment with any third party which might conflict with his obligations under the ITV contracts. Per the written contract he could not agree any new commercial activities without the prior written consent of ITV. In practice, Mr Holmes did not seek permission from ITV for his other commercial activities. He would let ITV know what he was doing as a matter of courtesy, but ITV did not regard him as requiring their permission to perform other work.

Mr Holmes did not attend production meetings or rehearsals and only sometimes attended the post-show de-brief.

Grounds of appeal

  1. The control test for employment status had been misapplied by the FTT.
  2. The third stage of the Ready Mixed Concrete test for employment status had been misapplied by the FTT.


Upper Tribunal Decision

The UT disagreed that the FTT had focused too much on editorial control and overlooked or gave little weight to factors where ITV did not and could not exercise control. The UT agreed with the Court of Appeal in Atholl House- see ESM7335,  that the ‘where and when’ of the control test should not be overlooked, though control of ‘what’ is the dominant feature of the test. The FTT had therefore properly considered the control test and their findings were valid. The UT endorsed the finding in CAM Ltd v HMRC- see ESM7320,  where the UT had held that compliance with an industry regulator was a relevant factor when evaluating evidence of control.

The alleged errors in the overall analysis of the FTT judgement did not point to a contrary conclusion that Mr Holmes was in business on his own account. Using that as a starting point can be misleading and distract from the exercise of keeping the terms of the contract in question central to the enquiry, a finding of the Court of Appeal in Atholl House.

The UT found at paragraph 112 of the Judgement that it was acceptable for the FTT to consider the extent to which Mr Holmes was dependent on ITV for a significant proportion of his income.

At paragraph 114 the UT found the FTT had considered if the ITV contract could be viewed as part of a wider business and were entitled to find otherwise after fully considering all of Mr Holmes other activities in its analysis.

The UT dismissed the appellants submissions that the FTT had incorrectly found a presumption of employment on the authority of WeightWatchers, finding that the FTT had correctly applied binding case law in its evaluative assessment of employment status.

In conclusion, the UT did not consider that the appellant established any error of law and confirmed the FTT findings.

Appeal Dismissed

Commentary

This case is helpful as it references several issues which are routinely argued in the FTT as pointing away from an employment relationship. These include:

  • The way written contractual provisions work in practice.
  • Control over what is to be done is an important factor but control over how, where and when services are to be performed remains relevant.
  • The hallmark of self-employment as regards a professional person’s activities may not accord entirely with those applicable to tradesmen.
  • Financial dependency on a single engager is a relevant factor to take into consideration.
  • An individual may be engaged under several contracts of employment, each contract accounting for a different period of his or her working week and be self-employed for other engagements. The Upper Tribunal judgement described this point at paragraph 137(2) of the Case Stated:
‘it may seem that Mr Holmes’ work for several organisations points to him being in business on his own account i.e. self-employed in all of his work. However, the case law clearly establishes that an individual may be considered to be engaged under several contracts of employment, each contract accounting for a different period of his or her working week and be self-employed for other engagements’.