Reply to: Another defeat for HMRC - £140k TalkSPORT host (Update: they won in the end)

[TheDogsNads]

The key feature in these borderline cases seems to be how long you've been working there.

18 years is a pretty long time!

[elsergiovolador]

The key feature in these borderline cases seems to be how long you've been working there.

This is probably a trigger as it seems that when someone been with one client for so long the likelihood of them being a disguised employee is higher than someone warming their seat for a couple of months.

When you have been using a particular supplier for years there is no legal requirement to make them your employees.

[elsergiovolador]

closer but still not true.

The worker doesn't determine status. The intermediary does. In most cases we discuss the 'worker' is a Director of the intermediary so makes that determination, but not in all cases.

Yes you are correct, I just used a mental shortcut for the common case.

[BlasterBates]

The key feature in these borderline cases seems to be how long you've been working there.

[Lance]

The worker will have to determine their status by themselves, but they have different risk than a company. I cannot see workers issuing blanket determination for themselves.

closer but still not true.

The worker doesn't determine status. The intermediary does. In most cases we discuss the 'worker' is a Director of the intermediary so makes that determination, but not in all cases.

[elsergiovolador]

The rules apply to all public sector clients and private sector companies that meet 2 or more of the following conditions:

you have an annual turnover of more than £10.2 million
you have a balance sheet total of more than £5.1 million
you have more than 50 employees

The worker will have to determine their status by themselves, but they have different risk than a company. I cannot see workers issuing blanket determination for themselves.

[Lance]

Companies with less than 50 employees will be exempt,

Not true

but given that for larger companies it will be problematic to contract anyone without PAYE.

Not true

No more odd cleaning jobs.

What on earth are you talking about?

[Fred Bloggs]

I am pleased with the decisions relating to media personalities. It is a blatant abuse by the media companies and the presenters that they are not employees. Anyone broadcasting to a schedule dictated by the company presenting what the company tells you to do at a certain time and place for nearly twenty years? Come on, how are they NOT employees? Both the companies and the presenters have been getting away with murder for decades. Long overdue that it stops and these wealthy people bear their burden like everyone else.

[quackhandle]

So the 143k HMRC want was from a specific contract? Maybe he should be lucky they aren't going after him for the whole 18 years?

Or maybe they will?

qh

[elsergiovolador]

did have control over what tasks Hawksbee should perform, when and where he performed those tasks.

Companies with less than 50 employees will be exempt, but given that for larger companies it will be problematic to contract anyone without PAYE.

No more odd cleaning jobs.

[TheDogsNads]

Tribunal Decision
https://assets.publishing.service.go..._Kickabout.pdf

Sports radio presenter Paul Hawksbee has lost his battle to show that his relationship with TalkSport Radio lay outside of IR35, leaving his company Kickabout Productions Ltd with a tax and NIC liability of £143,126.

Mutuality of obligation
The UT concluded that TalkSport did have an obligation to provide work for Hawksbee under both of the contracts, and in turn Kickabout was obliged to make Hawksbee available, so MOO was present. The UT concluded that the FTT made an error of law on this point. However, the UT decided not to refer the case back to the FTT, but remade the decision itself.

Control
The UT considered the facts relating to control and found that TalkSport had little control over how Hawksbee did his work, but the radio station did have control over what tasks Hawksbee should perform, when and where he performed those tasks. The UT concluded there was sufficient control by TalkSport over Hawksbee to be consistent with an employment contract (inside IR35).

Other factors

For completeness the UT considered what other factors pointed at self-employment or an employment relationship.

The pointers towards employment were:
• The fact that Hawskbee had been presenting the show for 18 years
• Hawksbee could not provide a substitute
• There were exclusivity provisions in the contracts
•The contracts required four-months’ notice of termination

The pointers to self-employment included:
• Fixed fee per show, which demonstrated a degree of financial risk
• Narrow task to be performed
• No worker rights such as sick pay, holiday pay
• No intention to form an employment contract
• No requirement for Hawksbee to complete training or undertake medicals
• Hawksbee was not part and parcel of the organisation

See AccountingWeb for details
IR35: Final score for Kickabout Productions | AccountingWEB

Hawksbee not 'part and parcel' of the organisation but had been presenting the same programme for 18 years? I know they said these were pointers but those two are paradoxically opposed.

Oh, and Alan Brazil must be crapping himself at this decision.

[eazy]

UT : IR35: Final score for Kickabout Productions

Tribunal Decision
https://assets.publishing.service.go..._Kickabout.pdf

Sports radio presenter Paul Hawksbee has lost his battle to show that his relationship with TalkSport Radio lay outside of IR35, leaving his company Kickabout Productions Ltd with a tax and NIC liability of £143,126.

Mutuality of obligation
The UT concluded that TalkSport did have an obligation to provide work for Hawksbee under both of the contracts, and in turn Kickabout was obliged to make Hawksbee available, so MOO was present. The UT concluded that the FTT made an error of law on this point. However, the UT decided not to refer the case back to the FTT, but remade the decision itself.

Control
The UT considered the facts relating to control and found that TalkSport had little control over how Hawksbee did his work, but the radio station did have control over what tasks Hawksbee should perform, when and where he performed those tasks. The UT concluded there was sufficient control by TalkSport over Hawksbee to be consistent with an employment contract (inside IR35).

Other factors

For completeness the UT considered what other factors pointed at self-employment or an employment relationship.

The pointers towards employment were:
• The fact that Hawskbee had been presenting the show for 18 years
• Hawksbee could not provide a substitute
• There were exclusivity provisions in the contracts
•The contracts required four-months’ notice of termination

The pointers to self-employment included:
• Fixed fee per show, which demonstrated a degree of financial risk
• Narrow task to be performed
• No worker rights such as sick pay, holiday pay
• No intention to form an employment contract
• No requirement for Hawksbee to complete training or undertake medicals
• Hawksbee was not part and parcel of the organisation

See AccountingWeb for details
IR35: Final score for Kickabout Productions | AccountingWEB

[FIERCE TANK BATTLE]

Do you have an example where someone caught inside IR35 claimed employment benefits ?

I can't imagine being caught inside IR35 would be an adequate reason for bringing a case after 3 months because a court would argue the plaintiff should have known.

Didn't that happen with HMRC's own contractor? IIRC HMRC said you're inside IR35, pay up, and they said OK give me my holiday entitlement, and HMRC said no, and they went to court and HMRC lost.

Something like that.

Edit: IPSE: Meet the woman who took on HMRC, and won

[SussexSeagull]

Tax and employment laws are entirely separately beasts. Incorrectly, some might argue. A future Labour government trying to tackle forced self employment in generally low paid jobs might change this and drag contractors along but that is highly speculative.

Non the less employment benefits will enter the equation for contractors considering what to do post April next year.

[WordIsBond]

could it be that they were worried that he'd make a claim in the ET for employment benefits?

Why would they care if he did?