The Court of Appeal has today handed down judgments in Kickabout Productions Ltd v HMRC; and HMRC v Atholl House Productions Ltd.

The two appeals, heard in consecutive weeks by the same constitution of the Court, are the first occasions on which the Court of Appeal has considered statutory appeals about the IR35 legislation, which concerns the provisions of a worker’s services through a third party, typically a personal service company. Although decided in that context, the judgments say much about the proper approach to determining employment status generally, and will therefore be of interest to employment and tax practitioners.

In particular, the judgments contain important points of principle as to the correct approach to the Ready Mixed Concrete test, the status and nature of the “business on own account” test, and, importantly, the Court of Appeal found that Autoclenz does not apply to contracts outside of the statutory worker status test.

HMRC succeeded in both appeals:

• In Kickabout, the Court upheld the decision of the Upper Tribunal that the relevant contracts, properly interpreted, contained an obligation on Talksport Radio to provide work to Kickabout Productions, the personal service company of Paul Hawksbee. It also upheld the decision of the Upper Tribunal to remake rather than remit the decision and the conclusion that it reached when remaking.
• In Atholl House, the Court found that the Upper Tribunal was wrong to have determined the employment status of Kaye Adams under a hypothetical contract with the BBC by starting with the status that she had over the course of her professional career rather than the terms and circumstances of the particular engagements with the BBC.

The decision in Atholl House has been remitted to the Upper Tribunal to apply the correct test. 

Georgia Hicks and Harry Sheehan represented Kickabout Productions. Christopher Stone and Marianne Tutin appeared for HMRC in both appeals and were led by Akash Nawbatt QC in the Kickabout appeal.

To read the Kickabout Productions Ltd v HMRC decision, please click here. 

To read the HMRC v Atholl House Productions Ltd decsion, please click here.