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IR35 victory for TalkSport host

IR35 victory for TalkSport host

Radio presenter Paul Hawksbee has won his IR35 tribunal after challenging a deemed tax bill of £140,000. The case marks yet another defeat for HMRC in their recent pursuit of media presenters such as Lorraine Kelly and Loose Women’s Kaye Adams for retrospective tax bills.

Hawksbee has been co-presenting the Hawksbee and Jacobs show for around twenty years through an engagement with his limited company Kickabout Productions Ltd (KPL). Tax authorities said that this effectively made him Talksport ’employee’, as about 90% of Hawksbee’s total income came from the engagement between 2012 and 2015.

HMRC argued that Hawksbee’s stint as co-presenter was an indicator of employment in that it suggested a significant degree of stability, while also arguing that Hawksbee’s continued on-air presence made him ‘part and parcel’ of the Talksport organisation.

However, as with most of the current celebrity presenter tribunals, the victory came down to the details of each individual contract, many of which aren’t even considered by CEST. Hawksbee’s engagement stipulated that he provide his on-air services for a minimum number of days per year from 1-4pm. Each contract stipulated that, prior to the end of the term, the parties would enter into negotiations regarding an extension.

According to CEST, a superficial interpretation of the contract might conclude that Hawksbee was granted sufficient security to indicate that he was an employee, rather than being employed on his own account. However, a close look at the facts reveals how simplistic the tool is at weighting the information that needs to be considered when assessing employment status.

For example, although Hawksbee had a long-serving tenure with the broadcast, he received a fee for each separate show, while his contract renewals were dependent on the continued success of the programme. Judge Scott also weighted the financial opportunity involved against the financial risk, as Hawksbee had turned down other assignments because of the engagement, such as writing the programme Taskmaster.

Indeed, Hawsksbee’s specific skill set, which allowed him to turn his hand to various media work such as writing and presenting, was a key consideration in establishing the presenter’s artistic freedom. As with both the Kelly and Adam’s cases, although the shows were subject to editing, the presenters retained considerable control over content, such as picking their own guests and telling their own jokes.

In addition to these factors, the tribunal considered that Hawksbee received no holiday pay, sick pay, pension or paternity leave, with Talksport paying him no retainer or bonus. Other factors such as MoO were not deemed to be of a sufficient degree to indicate employment, while the right to provide a substitute, although not present in the contract, was rendered a neutral factor by Judge Scott, given the “unique expertise and work product of Mr. Hawksbee.”

This latest case highlights that not only are CESTS key determinants insufficient when weighting the information involved in each separate case, but that in many instances they are almost wholly irrelevant or misleading when it comes to determining true employment status. To find out more about the controversial IR35 reforms and how they could affect you, read our article here.

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