Former BBC presenter Christa Ackroyd has lost her appeal against a ruling that she was an employee, not a freelance contractor. Whereas Helen Fospero, a presenter on ITV has won her appeal. Both provided their services via personal service companies.
Where IR35 is in play, the relationship between the individual and the end user is reviewed to see if, in the absence of a personal service company, the relationship would be one of employment. If a deemed employment relationship exists then the income received is subject to PAYE.
In Christa Ackroyd’s case the Tribunal accepted HMRC’s contention that the BBC had the ultimate right of control of over how she provided her services to the broadcaster. The contract gave the BBC the first call on her services as presenter, reporter or to provide ancillary support. It also required her to represent the BBC at public events. In addition to this her contract was a fixed term of 7 years indicating mutuality of obligation representative of an employment style relationship.
By contrast, the Judge in the case of Helen Fospero, concluded that she did not have a deemed employment relationship. She was hired on an assignment by assignment basis which were all short-term in nature, with no guarantee of future work once an assignment came to an end. She was under no obligation to accept future work.
The IR35 rules were amended for Public Bodies (including the BBC) from April 2017 and the government will make similar changes for the private sector from April 2021.