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In contrast to both Ackroyd and Paya, in this case the tribunal ruled that the engagement of Kay Adams by the BBC fell outside of IR35 and that Ms Adams was genuinely self-employed. In reaching this decision, the tribunal relied on the following realities of the relationship.
The full Atholl House Productions v HMRC [2019] decision is available on the Government website here.
Although Ms Adams had a contractual minimum time commitment, she had not always fulfilled this commitment and her fee had been reduced accordingly.
Further, whilst the BBC contractually had 'first call' on Ms Adams' services, this was not borne out in practice and the BBC did not, in reality, have any control over her other engagements. The mutuality of obligation present in the engagement was therefore not sufficient to support an employment relationship.
Ms Adams wrote her own scripts and had control as to which calls to take, what questions to ask and the direction of the show – the ostensible editorial control reserved for the BBC was considered to be 'light touch' and therefore insufficient to represent that of an employer.
There was an express right of substitution, however this was considered impractical and disregarded by the parties; Ms Adams was therefore required to provide personal service, however again, given the nature of the services, this was not considered a material factor.
Throughout her engagement with the BBC, Ms Adams had continuously provided services to other media corporations, her engagement with the BBC accounting for only 50% of her annual income.
She had invested considerably in her own social media platform, did not have access to the BBC's systems externally, was not entitled to holiday, sick pay, maternity leave or a pension and was not integrated into the BBC in the same or similar manner as an employee. The other factors therefore supported the position of self-employment.
For more information about the IR35 rules and how they will apply to businesses, please contact Nathalie Ingles or Charlie Maples or read more about our corporate solicitors or corporate tax legal services.
