A BBC radio presenter, who also presents ITV’s “Loose Women”, has won her Upper Tier Tribunal appeal. HMRC claimed that Kaye Adams’ personal service company should have applied IR35 rules to payments made by the BBC for presenting a BBC Scotland radio programme. Upholding the original ruling from the First Tier Tribunal in 2019, Mr Justice Marcus Smith and Judge Jonathan Richards concluded that Adams was employed on her own account. In making their decision, the tribunal carefully considered the written arrangements of the contract against Ms Adams’ working practices.
Adams has been a freelance journalist for more than 20 years. Her services are provided through her own limited company to a wide variety of media organisations. As well as her work for the BBC, she is well known for her appearances on ITV’s ‘Loose Women’ and ‘Paper Review’ on Sky News. She also authors regular columns for various newspapers and magazines.
Ms Adams began the BBC radio engagement in 2010 and each written agreement between her limited company and the BBC specified that the BBC had first call on her time during the term of the agreement. The agreements also stated that Adams was required to obtain the BBC’s permission in advance of entering into any other engagements. However, on the evidence provided by Adams and the Programme’s producer the tribunal accepted that this was not the case in practice. The judges found that the written agreements did not reflect the terms of the actual agreement between the BBC and Adams.
The ratio of Adams’ income from non BBC work was one of the deciding factors in finding that she was not an employee of the BBC. As well as receiving 30% of her income from other sources, the BBC never sought to place any restrictions on her work for other organisations. It was also understood by the BBC that she would continue to carry on with her other engagements without seeking the BBC’s permission.
This is in contrast with the IR35 case of former BBC television presenter Christa Ackroyd. Her non-BBC income was minimal. The BBC’s agreement also stated that they had first call on Ackroyd’s time, but she attended BBC training sessions and received a clothing allowance. In addition, Ackroyd could be told by the BBC who she was interviewing. The IR35 tribunal said that none of these features were present in the relationship between the BBC and Adams.
According to the judges, a number of other features indicated that Adams did not have a contract of employment with the BBC, and was therefore outside IR35. In particular, Adams had no entitlement to use BBC equipment except when she was presenting programmes, and she was not entitled to any holiday or sick pay, maternity leave or a pension entitlement. Adams was also treated differently from the BBC’s employees as she was not subject to reviews or other formal processes.
Mr Justice Marcus Smith and Judge Jonathan Richards concluded: “In summary, we consider that, when one stands back from the detail and considers the whole picture in this case … that picture is one which leads us to conclude that each hypothetical contract between the BBC and Ms Adams was a contract for services and did not give rise to a relationship of employer and employee”.
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With IR35 reforms less than 6 weeks away, limited company contractors need to take the appropriate steps now to ensure they are ready for the changes. From April 2021 it will be the end-client who will determine whether or not the contract is inside or outside IR35. As the Adams appeal indicates, the final decision can come down to the wire. ContractingWise can assist those who are still unsure of their options to keeping their contracting career on track. To talk to a member of our team, call: 0203 642 8679.