Kaye Adams, who presents the Loose Women chat show, has won an IR35 challenge by HMRC concerning her employment status for tax purposes. HMRC claimed that Ms Adams, who contracts with the BBC for her radio shows via her personal services company Atholl House Productions, should be deemed to be an employee for tax purposes and that consequently her personal services company should have operated PAYE on her earnings and made deductions for national insurance contributions of some £125,000.

However HMRC were unsuccessful in their arguments. The tax tribunal disregarded terms in Ms Adams’ contract which gave the BBC a first call on the presenter’s time and control over her other engagements, as the tribunal found that both parties were unaware of these terms. Likewise an express right of substitution was disregarded because it was impractical, given the nature of the show which Ms Adams presented and her personal brand.

Ms Adams was not paid when she missed shows on account of family responsibilities or when she was suspended for three weeks when the BBC deemed a tweet which she sent from her personal twitter account breached their standards. The tax tribunal took account of these factors, together with the fact that Adams had a high degree of control over:

• Which callers to take when she was on air;
• What questions to ask; and
• The direction the shows should follow.

The case was distinguished from that of another BBC presenter, Christine Ackroyd (presenter of BBC Look North regional news), who lost her IR35 challenge last year. The tribunal distinguished Ms Ackroyd’s case because she derived 96 – 98% of her income from the BBC (and had to obtain the BBC’s consent for non-BBC engagements) whereas Ms Kaye had a number of sources of concurrent income and her professional identity and remuneration were linked more closely with her non-BBC engagements. Ackroyd had a clothing allowance and the BBC had first call on her time, she attended BBC training and the BBC could direct who she interviewed.

This is the fifth of six IR35 challenges which HMRC has lost in the past year, suggesting that HMRC itself struggles with these concepts. The case only serves to highlight the very fact-specific nature of employment status claims. It demonstrates the real challenge for the government with its proposals to roll out its off-payroll working rules to the private sector from April 2020, having made these changes in the public sector last year. In particular, its hopes for an online employment status checker to assist businesses with the adoption of the new rules seem naïve at best, given the fact-specific nature of many of these cases.

For more information about the off-payroll working rules coming into force in April 2020 please see our podcast here and watch out for our workshop on the new rules in June.

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