TV presenter, Helen Fospero wins against HMRC in the latest IR35 case 7 November 2019
Helen Fospero, an ITV morning presenter, has won a Tribunal against HMRC in the latest of a series of IR35 cases. Fospero worked for ITV through her limited company, Canal Street Productions Ltd, in tax years 2012-13 and 2013-14.
She was handed a tax bill of approximately £80,000 which a Tribunal has ruled isn’t valid as she was not classed as being ‘inside IR35’ for the engagements during this period. This was because she worked several short-term engagements but was not guaranteed, and there was no obligation to provide, further work. Nor was she expected to accept further work, resulting in the definition that she was self-employed. It was also observed that she provided external work during this time and wasn’t always working exclusively with ITV. The case is the latest to cast aspersions on the reliability of the Check Employment Status for Tax tool. It once again highlights how important mutuality of obligation is and shows the gravity attached to making incorrect judgements on the element of employment status. HMRC maintains that there can never be a contract where there is no mutuality of obligation and so has omitted any questions relating to this from the tool. This is the latest in a stream of cases where IR35 has been the subject of debate and serves as a further reminder that there are only slight nuances between individuals who are deemed as being ‘inside IR35’ and those who are deemed as not. Christa Ackroyd, a fellow TV presenter, lost her battle against HMRC on the grounds of IR35 as it was asserted that she held employment status during her presenting engagements, as did the three presenters for the BBC that recently lost their case. Lorraine Kelly is another high-profile individual who won her case against HMRC on the grounds of IR35, and coincidentally, Fospero was expected to provide temporary one-off cover for Kelly when she wasn’t available.
CIPP comment
The fact that there has been so many cases relating to IR35 and that there have been decisions that have fallen on both sides of the argument reiterates how important it is to get Status Determination Statements correct, and ensure that relevant individuals within organisations are prepared for the reforms to off-payroll working that will be put into practice from April 2020. The CIPP is offering both webinars and half-day training courses to help assist with the tasks that many employers and payroll professionals are professing to finding daunting in relation to the off-payroll working reforms.
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Tribunal rules that workers should be classed as employees for purposes of TUPE regulations 5 December 2019
The London central employment tribunal has ruled that Transfer of Undertakings (Protection of Employment) (TUPE) applies not only to ‘employees’ but also to ‘workers’.
In the case of Dewhurst v Revisecatch Ltd t/a Ecourier, three cycle couriers disputed the fact that they had not been paid holiday pay and also that they had not been correctly informed, consulted and treated as working under a contract of employment for the purposes of TUPE. Under TUPE, the existing and the new employers must both provide certain information to staff and may need to consult with any employees who are affected by the transfer. The claimants advised that this had not happened when eCourier, a Royal Mail subsidiary took over their contracts from City Sprint. This potentially has significant implications and widens the scope of individuals who The TUPE regulations define ‘employee’ as any individual who ‘works for another person, whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services’. The claimants argued that the inclusion of the phrase ‘or otherwise’ extends the definition of ‘employees’ to include ‘workers’. Judge Joffe commented:
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