The vexed distinction between employees and independent contractors is a constant source of dispute, not least in the realm of tax. Each case has to be decided on its own unique facts and, in one case, the Upper Tribunal (UT) ruled that a radio presenter was genuinely freelance and was thus not caught by the intermediaries legislation, commonly known as IR35.
The presenter provided her services to a broadcaster under the aegis of her own personal service company. HM Revenue and Customs (HMRC) decided that, if the company's role as intermediary were taken out of the equation, the reality of the situation was that she would be the broadcaster's employee. On that basis, the company was assessed for PAYE and National Insurance Contributions on her earnings derived from the broadcaster in respect of two tax years. After she appealed, however, that decision was overturned by the First-tier Tribunal (FTT).
Ruling on HMRC's challenge to that outcome, the UT noted that the company's contract with the broadcaster required the presenter to make 160 programmes annually for a minimum fee of £155,000. The contract was non-exclusive and she was in practice granted substantial latitude and autonomy in going about her work.
There was, however, a mutuality of obligation and the broadcaster had significant control over where, when and how she provided her services. During the relevant tax years, between 50 and 70 per cent of her income derived from the broadcaster, which demanded a good proportion of her available working time.
Dismissing the appeal, however, the UT found that she was nevertheless in business as a freelance presenter on her own account. She was an expert in her field, with a 20-year record of presenting successful shows. It was an uncertain profession and she was exposed to the ebb and flow of fickle audiences and cancelled shows. Taken in the round, the evidence did not displace the FTT's conclusion that her relationship with the broadcaster was that of an independent contractor.