TV presenter Fospero wins IR35 case against HMRC

Another high-profile TV presenter has won an IR35 case against HM Revenue & Customs.

According to the ruling, which Recruiter has seen, the case rested on whether ITV morning TV presenter Helen Fospero would have been regarded as an employee if she was engaged under a contract directly with the television company. She was found to be outside IR35. 

Commenting on the ruling, Dave Chaplin, CEO and founder of contracting authority ContractorCalculator, praised the sensible approach taken by the tribunal.

“Helen Fospero clearly was [outside IR35]; she was in the business of presenting and broadcasting, and was doing so on a self-employed basis. This is the second IR35 case, after the Atholl case in April when Kaye Adams won her appeal, which was also decided on due to her being in business on one’s own account.

“Earlier this year, Lorraine Kelly, the main host of Lorraine on ITV, was found to be outside IR35, or not a ‘deemed employee’. Part of Fospero’s work was to provide temporary one-off cover for Lorraine when she [Kelly] was away, often at short notice. It would therefore have been somewhat perverse for a new ruling to decide that someone who replaced a self-employed person as a stand-in was themselves employed.

“These presenter cases are very nuanced and different to the typical project-based contractor who takes on one client at a time. The case law for presenters is still addressing the nuances.

“It is surprising this case went as far as tribunal, because it does appear that Ms Fospero was a casual worker with no obligation to accept work or be offered work – which is one of the key tenets of employment. HMRC clearly took a very narrow-minded view. However, we anticipate that HMRC will appeal because they seem to be appealing case after case at the moment and splashing taxpayers’ money on pursuing meritless cases.”

Also commenting, Daniel Fallows, director at Bolton-based accountant Gorilla Accounting, described the case as further proof that HMRC’s implementation of IR35 is deeply unsatisfactory. 

“The uncertainty and inconsistencies surrounding IR35 are paralysing for the self-employed. Contractors and freelancers need a stable regulatory environment to be able to focus on their work, which contributes so much to the UK economy. However, this is sorely lacking at the moment, and HMRC must reconsider its approach to IR35. In particular, the Check Employment Status for Tax (CEST) tool should immediately be reviewed, as it mistakenly gives the wrong employment status in many cases.

“Now more than ever it is crucial that contractors, freelancers and locums seek specialist advice to ensure they have the peace of mind about their employment status and can focus on their work.”

An HMRC spokesperson told Recruiter it is considering an appeal.

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