Kickabout Productions successfully challenged HMRC's determination that Talksport's engagement of Paul Hawksbee via his personal service company amounted to 'deemed employment' under IR35.
Mr Hawksbee has been the co-presenter of the weekday Hawksbee and Jacobs radio show on Talksport since 2000. The tribunal reached its decision on his IR35 tax status on the following basis.
Why Paul Hawksbee's IR35 challenge succeeded
Whilst the tribunal found that mutuality of obligation did exist between Mr Hawksbee and Talksport, it considered that the radio station was not under an obligation to provide a minimum amount of work. As a result, the degree of mutuality – taken together with the other circumstances – was not sufficient to establish employment.
Talksport had control over when and where the services were performed, however Mr Hawksbee decided the format and content of the show. The control exerted by Talksport whilst the show was on air was limited and therefore not indicative of an employment relationship.
Mr Hawksbee had no right of substitution and was required to perform the services personally, however, in the circumstances the tribunal did not consider this to be a significant factor in favour of employment.
Notwithstanding Mr Hawksbee's economic dependence on the contract, the tax tribunal didn't consider him integrated into Talksport. He was not invited to nor did he attend staff meetings or events, he had no line manager, was not subject to appraisals and was not entitled to any rights equivalent to holiday, sick pay, pensions or paternity leave. He also bore a degree of financial risk in providing the services, such that the other factors, when considered in the round with the points above, suggested a genuine contract for services and not a contract of employment.