IR35 Decision analysis BBC Kaye Adams appeal win.

My Analysis and observations

Digression A: Personally performs?

End of digression A

(Page 8) The relevant case law

(Page 11 para 21) last sentence

Page 12 para 23

Page 12 para 25

Page 13 para 31

There is a LOT of “Chatter” here showing deliberations in progress about opposing counsels’ opposing opinions. It is very useful to acquire a feel for how courts allow themselves to deal with explicit contract terms.

Page 16 para 33

Page 16 A contract for services or a contract of service

Page 17 para 36

Page 17 para 38

Pages 19 to 20 para 44

And here surfaces MOO!

Mutuality of obligation

Page 21 para 46

And substitution

Page 21 para 47

Control

Page 22 para 48 end

Page 22 para 51

The written agreements

Page 23 para 55

So that’s deliverables between dates.

And there’s the price AND a rate for a deliverable.

(Page 33)

From the producer’s evidence

The arguments of the parties

  1. As we have observed in paragraphs 16 to 51 above, there is very little disagreement between the parties in relation to the legal principles which are applicable in this case.
  2. They are agreed that the appeal stands or falls on the question of whether the terms of each hypothetical contract between the BBC and Ms Adams were such that the relevant hypothetical contract should be seen as a contract for services (as the Appellant contends) or as a contract of service (as the Respondents contend).
  3. They are also agreed that the terms of each hypothetical contract are to be derived from the terms of each actual agreement between the BBC and the Appellant.
  4. Furthermore, they are also agreed that, in determining whether each hypothetical contract amounts to an employment contract, the three-stage test set out by MacKenna J in RMC should be applied — that is to say:

(Page 34)

  1. However, the parties do diverge in their construction of the terms of the hypothetical contract for the above purposes.

THEN, and these are of great interest because they amount to working practices that monied the contract IN FAVOUR of the appellant.

  1. We found both Ms Adams and Mr Paterson to be very credible witnesses and we have accordingly concluded, on balance, that, notwithstanding the terms of each written agreement, including clause 16.5 of Part B of each written agreement, the evidence described in paragraphs 87 to 89 above is so compelling that we are satisfied that, to the extent that the position summarised in paragraphs 87 to 89 above is contrary to the terms of each written agreement, the relevant written agreement did not reflect the terms of the actual agreement between the BBC and the Appellant which the relevant written agreement purportedly recorded. Accordingly, we find as facts that:
  1. In similar vein, although clause 16.7 of Part B of each written agreement ostensibly provided for Ms Adams to have a right of substitution “in exceptional circumstances” and subject to the BBC’s prior approval, the evidence of Ms Adams and Mr Hollywood mentioned in paragraph 57(t) and paragraph 59(b) above demonstrates that this right was illusory.
  2. Accordingly, we find as a fact that there was no right of substitution under each actual agreement between the BBC and the Appellant.

(Page 45 Para 102) the hypothetical contract. What might yours look like given this example?

Now we are getting to it: CONCLUSIONS

  1. Nolan LJ in Hall went on to explain that, in the case of such a person, it is far more meaningful to consider the extent to which the individual in question is dependent on one particular paymaster for the financial exploitation of his or her talents, the length of the relevant engagements, and the number of different clients involved in those engagements.
  2. In considering those features in the present case, there was some debate between the parties as to the precise percentage which Ms Adams’s work for the BBC over the two tax years of assessment in question bore to Ms Adams’s work overall, both in terms of financial remuneration and in terms of time taken. It is clear that the percentage in each case was significant — both parties agreed that her remuneration under the two contracts with the BBC amounted to over 50% of her income and, on the days on which she presented the programme, a significant part of her working day would be taken up with the programme. However, we do not think that Ms Adams’s other work over that period can aptly be described as being de minimis or insignificant, either in terms of remuneration or in terms of Ms Adams’s overall working time. Even on the basis of the Respondents’ own figures — which are lower than those of the Appellant — approximately 30%, on average, of Ms Adams’s gross income over the two tax years of assessment derived from engagements which were not with the BBC and it is therefore apparent that Ms Adams must have spent a meaningful part of her overall working time on those other engagements.

114. Thus, the overall impression which we have derived from the evidence before us is that Ms Adams generally carries on her profession as an independent provider of services and not as an employee.

  1. Notwithstanding the above, we believe that there are significant differences in the facts of the two cases which are material in this context. First, in Ackroyd, the contract between the BBC and Ms Ackroyd’s service company was 7 years’ long and it followed a contract which was 5 years’ long. In contrast, each contract in this case was for approximately 1 year. Secondly, the ratio of Ms Ackroyd’s non-BBC income to Ms Ackroyd’s BBC income was materially different from the comparable ratio in relation to Ms Adams. Ms Ackroyd’s non-BBC income was effectively de minimis.
  1. For the reasons set out in paragraphs 102 to 132 above, we have concluded that the appeal should be allowed.

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