First-tier Tribunal (Tax)

[2010] UKFTT 148 (TC)

TC00454                                       

 

Appeal number: SC/3091/2009

 

AGENCY WORKERS – income tax and NICs – temporary staff for airport duty-free shops booked for a morning or afternoon shift – whether obligation to provide personal services – no because unfettered right of substitution – whether subject to, or to the right of, supervision, direction or control as to the manner in which he renders those services – yes – appeal allowed

 

 

FIRST-TIER TRIBUNAL

 

TAX

 

 

 

                      TALENTCORE LIMITED T/A TEAM SPIRITS     Appellant

 

 

                                                                      - and -

 

 

                                 THE COMMISSIONERS FOR HER MAJESTY’S

                                                   REVENUE AND CUSTOMS               Respondents

 

 

 

 

                        TRIBUNAL: JOHN F AVERY JONES CBE (TRIBUNAL JUDGE)

 

 

 

Sitting in public at 45 Bedford Square, London WC1 on 8 and 9 March 2010

 

 

Jeremy Woolf, counsel, instructed by David Craddock, for the Appellant

 

Adam Tolley, counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs, for the Respondents

 

© CROWN COPYRIGHT 2010

DECISION

 

1.       Talentcore Limited trading as Team Spirits appeals against assessments to tax under PAYE and National Insurance Contributions for the years 1998-99 to 2006-07 totalling £3,621,842.30.  The Appellant was represented by Mr Jeremy Woolf and the Respondents (“HMRC”) by Mr Adam Tolley.

2.       The issue in this appeal is whether the legislation dealing with agency workers, which has the effect of deeming them to be employed by the agency for income tax and NICs, is applicable to the Appellants.

3.       It was an agreed fact that the Appellant’s function is to supply individuals for counter and promotional work to major cosmetic companies at duty free shops at airports.  It has a database of about 100 individuals referred to as consultants.  The Appellant supplies the consultants to the cosmetics companies by allocating work to them. 

4.       I heard evidence from Ryta Ward (known professionally as Ryta Carr), managing director of the Appellant; Zuhaib Kasmani, and Edrisse Hussane, consultants working on cosmetics; and Dennis Twine and Catherine Twine, consultants working on customer service mainly in connection with alcohol sales, and find the following facts:

(1)        There is no framework contract between the Appellant and the consultants.  The Appellant is free to offer work to them or not, and they are free to accept or decline work when offered.

(2)        There are no written contracts between the Appellant and either the cosmetics companies (or World Duty Free which runs the duty-free shops) or the consultants. 

(3)        Mrs Carr is well known to the cosmetics companies having worked with them for 20 years.  Through the Appellant she has built up a business of providing experienced consultants for work in duty-free shops.  Cosmetic companies will obtain a three-week slot for promotions in the duty-free shop which take place from a position, described as a gondola, separate from the normal cosmetics counters.  About 70% of the Appellant’s work is to find consultants to service such promotions by selling the product being promoted.  The remainder of the Appellant’s work is to fill vacancies for work on the counter in normal duty-free shopping areas, whether relating to cosmetics or alcohol, including sometimes, though not normally, operating the till.

(4)        The Appellant does not train consultants but engages those who have the necessary experience.  Prospective consultants are interviewed.  During the interview Mrs Carr will explain the dress code which is set out in a document entitled “Members code of practice” of which there are versions 1 and 2 but Mrs Carr did not remember the date of change.  The document is not normally handed to consultants but is used by Mrs Carr as the basis for interviews, but might occasionally be handed to a consultant who was not sure about something.  It emphasises punctuality and appearance (avoiding such things as chewing, yawning visibly, lounging on a counter, grooming hair or touching up make up) and sets out a detailed dress code.  Consultants are required to obtain their own security pass enabling them to work at the airside of the airport.

(5)        The cosmetics company will provide some training about a new product for about an hour before the session, and they may set sales targets.  The Appellant will also give advice, which is not paid for separately, on the promotion, including sometimes changing the hours worked.

(6)        The Appellant will telephone consultants offering work on particular days in the morning (8 am to 2 pm) or afternoon (3 pm to 9 pm) shift.  If a consultant accepts, a contract is entered into for such work.  A rota is prepared of the names of consultants and sent to the cosmetics company and the consultants.  The consultant obtains a signature on his time sheet by either someone present from the cosmetics company or a manager from World Duty Free.

(7)        When working there is little supervision of the consultants.  There is no control over sales techniques employed by consultants.  Normally nobody from the cosmetics company will be managing the promotion; the counter staff working for the cosmetics company will be managing the counter and will not be supervising the promotion.  World Duty Free as operator of the duty-free shop will be in a position to give directions to the consultants.  For consultants not involved with promotions they would be working alongside staff of World Duty Free and would be subject to the same control as other staff.  If a consultant turned up improperly dressed either someone from the cosmetics company or World Duty Free would be in a position to send them home.

(8)        The cosmetics company is invoiced by the Appellant by attaching a list of the people and time worked, and the consultants are paid in accordance with the time sheets.

(9)        Consultants who are unable or unwilling to work for an agreed slot are expected to inform the Appellant and if possible find a replacement.  Version 1 of the Members Code of Practice states:

“If for any reason you find that you will be late, you must always first telephone Team Spirits office (regardless of the hour) and find another Team member to take your place—any such change must be approved by Ryta in advance and the Team Co-ordinator informed.  Changes must only be requested in absolute emergencies—too many shift changes have been taking place in the past for the good of the Team’s reputation and have created administration difficulties.”

Version 2 does not include this but states under the heading Sickness

“Sickness or other reasons must always be reported to the office as soon as possible.  Remember the Team Spirits phone [number given] is manned 24 hours a day—all year long!  It may then be possible to arrange for your absence to be covered.”

Mrs Carr’s witness statement said:

“They [the consultants] are informed about…my particular insistence that it is their responsibility to act on their own volition, choice and initiative to organise a suitable person to replace them in the event that they are prevented from working through sudden illness or some other unexpected eventuality.  This is of paramount importance since the team’s reputation for reliability is at stake.

Regrettably this situation frequently arises through the increased risk of contact with illnesses within the airport, child minding problems, unscheduled disruption of public transport and the like, all exacerbated by the unsocial working hours of shift working—innumerable examples can be provided.”

In oral evidence she stated that the consultant who had accepted work either had to attend or find a replacement, but if this was done frequently the consultant might not be offered work again.  She had never considered the situation of someone who always sent a replacement. 

(10)     Mr and Mrs Twine both of whom work for the Appellant change shifts between them from time to time.  The situation where neither could work a particular shift had never arisen.  Mr Kasmani considered himself totally free to send a substitute.  This arose when his wife booked a holiday.  Mr Hussane (who did not work for the Appellants during the time of the assessments) stated that he liked the idea of being able to delegate work or exchange work with a friend holding an airport identity pass, which he does without problems simply by telephoning a friend.  Where substitutes are arranged at the last minute without informing the Appellant the consultant who agreed to work the particular shift will pay the substitute and claim the same amount from the Appellant.  I saw three letters from other consultants not called as witnesses saying that they had engaged a substitute and paid them, and two others who said they knew they could do so but had not done it.

5.       On the right of substitution I infer from this evidence that the Appellant’s primary concern was that every shift was covered, but which member of the team of consultants available to be asked covered it was of less concern, although it liked to avoid too many substitutions.  Since the business consists of filling a number of separate shifts with consultants on their database, who are free to accept the work or not in the first place, I infer that the Appellant is not concerned whether consultant A or consultant B accepts the offer of a particular shift.  Suppose consultant A agrees to work a particular shift, it must follow that the Appellant is also not concerned if consultant B (or C) is substituted, and nor is it concerned with whether the substitution was because of illness or merely because the person did not feel like working that day.  The usual objection to finding that there is an unfettered right of substitution given in the cases considered below, that if there is the person never need turn up to work, is not a material consideration where the contract is to work only a particular morning or afternoon shift.  The Appellant hopes that substitutions will not occur too frequently but seems resigned to its happening, as Mrs Carr’s witness statement says.  No doubt the Appellant prefers no substitutions because of the complications that will obviously arise when the client cosmetics company is sent a list of names of consultants to expect and then someone else turns up (or presumably if consultant A claims payment but consultant B submits the time sheet, although this was not explored), but it seems that the cosmetics company is not normally monitoring who is there anyway, and what really matters to the cosmetics company is that someone suitable is there for all shifts and that the time sheets are completed.  I so find.

6.       On supervision, direction or control, while it seems that this is actually minimal because the consultants are experienced and the cosmetics company is not in fact overseeing the promotions, I infer that if a manager from the cosmetics company were present he or she would have a similar right to exercise supervision, direction or control over consultants as he or she would over other retail staff who were employees.  Consultants working otherwise than on promotions are indistinguishable from other employees of World Duty Free or a cosmetics company with whom they are working and World Duty Free or the cosmetics company would have a similar right.

7.       The relevant legislation is as follows:

(1)        Income and Corporation Taxes Act 1988 (applicable until 5 April 2003)

“134 Workers supplied by agencies

(1) Subject to the provisions of this section, where—

(a) an individual (“the worker”) renders or is under an obligation to render personal services to another person (“the client”) and is subject to, or to the right of, supervision, direction or control as to the manner in which he renders those services; and

(b) the worker is supplied to the client by or through a third person (“the agency”) and renders or is under an obligation to render those services under the terms of a contract between the worker and the agency (“the relevant contract”); and

(c) remuneration receivable under or in consequence of that contract would not, apart from this section, be chargeable to income tax under Schedule E,

then, for all the purposes of the Income Tax Acts, the services which the worker renders or is under an obligation to render to the client under that contract shall be treated as if they were the duties of an office or employment held by the worker, and all remuneration receivable under or in consequence of that contract shall be treated as emoluments of that office or employment and shall be assessable to income tax under Schedule E accordingly….”

(2)        Income Tax (Earnings and Pensions) Act 2003 (applicable from 6 April 2003)

“44 Treatment of workers supplied by agencies

(1)     This section applies if—

(a)     an individual (“the worker”) personally provides, or is under an obligation personally to provide, services (which are not excluded services) to another person (“the client”),

(b)     the services are supplied by or through a third person (“the agency”) under the terms of an agency contract,

(c)     the worker is subject to (or to the right of) supervision, direction or control as to the manner in which the services are provided, and

(d)     remuneration receivable under or in consequence of the agency contract does not constitute employment income of the worker apart from this Chapter.

(2)     If this section applies—

(a)     the services which the worker provides, or is obliged to provide, to the client under the agency contract are to be treated for income tax purposes as duties of an employment held by the worker with the agency, and

(b)     all remuneration receivable under or in consequence of the agency contract (including remuneration which the client pays or provides in relation to the services) is to be treated for income tax purposes as earnings from that employment.

…

47 Interpretation of this Chapter

(1)     In this Chapter “agency contract” means a contract made between the worker and the agency under the terms of which the worker is obliged to personally provide services to the client.”

(3)        Social Security (Categorisation of Earners) Regulations 1978

“2—(1)     For the purposes of the Act an earner in one category of earners shall be treated as falling within another category in accordance with the following provisions of this regulation.

(2)     Subject to the provisions of paragraph (4) of this regulation, every earner shall, in respect of any employment described in any paragraph in column (A) of Part I of Schedule 1 to these regulations, be treated as falling within the category of an employed earner in so far as he is gainfully employed in such employment and is not a person specified in the corresponding paragraph in column (B) of that Part, notwithstanding that the employment is not under a contract of service, or in an office (including elective office) with emoluments chargeable to income tax under Schedule E [“general earnings” substituted for the words after “with” from 6 April 2004 in consequence of ITEPA 2004].” 

Column A of Part I of Schedule 1 headed “Employments in respect of which, subject to the provisions of regulation 2 and to the exceptions in column (B) of this Part, earners are treated as falling within the category of employed earner” contains the following:

“2. Employment (not being employment in respect of which a person is, under the provisions of paragraph 1, 3 or 5 of this Schedule, treated as falling within the category of an employed earner) in which the person employed renders, or is under obligation to render, personal service and is subject to supervision, direction or control, or to the right of supervision, direction or control, as to the manner of the rendering of such service and where the person employed is supplied by or through some third person (including, in the case of a body of persons unincorporate, a body of which the person employed is a member) and—

(a) where earnings for such service are paid by or through, or on the basis of accounts submitted by, that third person or in accordance with arrangements made with that third person; or

(b) where payments, other than to the person employed, are made by way of fees, commission or other payments of like nature which relate to the continued employment in that employment of the person employed.”

8.       Mr Woolf contends in outline:

(1)        All three statutory provisions have the same effect.  “Personal services” means that the services are provided by a specific person to a specific person under an obligation to do so.  If this were not so, personal service would extend to a sub-contractor who uses his own labour to provide a service to a client of a contractor.  The reason why a plumber doing work is not caught because he is working for the plumbing firm and is not rendering personal services to the client in the example in paragraph 2003 of HMRC’s Employment Status manual is that the client has not right to the services of any specific worker.

(2)        The reason for the difference between render, and being under an obligation to render, personal services is to deal with the case of the worker who has not yet started to do so.

(3)        The consultants have an unfettered right to delegate and so are not obliged to render personal service.

(4)        It must be implied that the supervision, direction or control be exercised by the client.  If it could be exercised by another person the legislation would apply to the plumber doing work for the plumbing firm, with the result that the legislation has a very wide effect.  Control by the agency would be relevant to whether the worker was an employee of the agency but the legislation applies where the worker is not an employee of the agency.

(5)        The supervision, direction or control is as to the manner in which the services are provided.  “The manner” means the whole manner and not one aspect of the manner.  Here in relation to promotions the client is the cosmetics company not the operator of the duty free shops.  The consultants know what they are required to do and no supervision, direction or control is required.  World Duty Free cannot demand that the consultant does other work.

9.       Mr Tolley contends in outline:

(1)        All three legislative provisions apply to rendering (or in ITEPA, providing), or being under an obligation to render (or provide), personal services (or for NICs, service), but there is an additional requirement in ITEPA that these should be supplied under the terms of an agency contract (defined as a contract made between the worker and the agency under the terms of which the worker is obliged to personally provide services to the client).  Apart from ITEPA, the provisions applied where a worker actually supplied services without being under an obligation to do so, with the result that while providing services the provisions must apply, whatever the terms of the obligation (such as the right of substitution).

(2)        The nature of the service is personal; the consultants are providing their own labour.  There is either no right of substitution or such right is far from unfettered.

(3)        There is here either a right of supervision, direction or control, or actual supervision, direction or control.  Only one of these need be present.  The plumber in Mr Woolf’s example is not caught because the client may control the outcome but not how the work is done.

(4)        It is not in dispute that the consultants are supplied by or through the Appellant.  The conditions for payment in the NIC Regulations are satisfied.

10.    Dealing first with whether the three pieces of legislation have different effect, as Mr Tolley contends, I agree with Mr Woolf that there must be an obligation on the worker.  If the worker is supplied by, or through, the agency there must be a contract between the worker and the agency otherwise the agency would not be able to make an agreement with the client to supply the worker.  This is expressly stated in ITEPA but must be implied in the other provisions.  The Explanatory Notes to ITEPA (which may be used as an aid to interpretation: “In so far as the explanatory notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction” see R (on the application of Westminster City Council) v National Asylum Support Service [2002] 4 All ER 654 at [5]) indicates that in rewriting s 134 increased focus was given to the agency contract (the only declared rewrite change (change 10) to the section was to clarify that the services provided to the client are deemed to be duties of an employment held with the agency).  I consider that the alternatives of render, or being under an obligation to render, services are intended to deal with the situation where there was an obligation to provide services but they were not actually required so that no services were in fact performed but the worker was still paid in accordance with the contractual obligation.  The words also deal with Mr Woolf’s example of payment in advance of the services being rendered.  It is reasonable to suppose that Parliament intended such payments to be caught by the legislation.  This interpretation fits the ITEPA provision in which the draftsman obviously saw no conflict in saying that the individual personally provides, or is under an obligation personally to provide, services under a contract between himself and the agency under the terms of which the worker is obliged to personally provide services to the client.  (In passing, I do not understand why the draftsman managed to avoid the split infinitive in s 44(1)(a) but not s 47.)  In the context both the services which the individual personally provides, and those he is under an obligation to provide must be pursuant to the contract.  In other words, in my view the legislation is not dealing with the situation of providing services (whether or not being an obligation to do so), but that of being under an obligation to provide services (whether or not they are actually provided, or have yet been provided).  On this basis I see no distinction between the three legislative formulations.

Personal services

11.    There was little disagreement between the parties on the legal effect of a right of substitution.  In Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance [1868] 2 QB 497, 515 MacKenna J said of one of the requirements for a contract of service:

“The servant must be obliged to provide his own work and skill. Freedom to do a job either by one's own hands or by another's is inconsistent with a contract of service, though a limited or occasional power of delegation may not be: see Atiyah's Vicarious Liability in the Law of Torts (1967) pp. 59 to 61 and the cases cited by him.”

Express v Echo Publications Ltd v Tanton [1999] ICR 693 is a case where the contractual provision was that the person was “unable or unwilling to perform the services personally he shall arrange at his own expense entirely for another suitable person to perform the services.”  This was held by Peter Gibson LJ, with whom the other members of the Court of Appeal agreed, not to be a contract of service at 699-700:

“In these circumstances, it is, in my judgment, established on the authorities that where, as here, a person who works for another is not required to perform his services personally, then as a matter of law the relationship between the worker and the person for whom he works is not that of employee and employer. Mr Tanton has submitted to us that, though the personal service to the appellant was a highly material consideration, it was not conclusive. I am afraid that that proposition cannot stand in the light of the authorities.”

The Privy Council in Narich Pty Ltd v Commissioner of Pay-roll Tax [1984] ICR 286 was not cited in Tanton.  There the contract provided that

“the lecturer will herself or by a substitute approved by the company lecture one of more Weight Watchers classes…The lecturer shall ensure that any such substitute carries out al the obligations which this agreement imposes on the lecturer and shall be responsible for arranging payment of he substitute from the fees and dues received from the members of the class.”

Notwithstanding this clause the Privy Council found at 297 that “The effect of the contract as a whole is to create between Narich and the lecturer the relationship of employer and employee.”

12.    A number of other cases show that limited right of substitution does not mean that there is no contract of service.  Tanton was distinguished in Macfarlane v Glasgow City Council [2001] IRLR 7:

11. The Tanton [1999] IRLR 367 case is in our judgment distinguishable from that at hand for at least the following cumulative reasons. Firstly, the appellants in our case could not simply choose not to attend or not to work in person. Only if an appellant was unable to attend could she arrange for another to take her class. Secondly, she could not provide anyone who was suitable as a replacement for her but only someone from the council's own register. To that extent the council could veto a replacement and also could ensure that such persons as were named on the register were persons in whom the council could repose trust and confidence. Thirdly, the council itself sometimes organised the replacement (without, it seems, protest from the appellant concerned that it had no right to do so). Fourthly, the council did not pay the appellants for time served by a substitute but instead paid the substitute direct. There is no finding as to what the substitutes were paid, nor that they were paid the same as the appellants, nor that the appellants had any say in what the substitutes were paid. These four grounds in our view provide ample reasons for the Tanton [1999] IRLR 367 case to be distinguished; but unfortunately only the last of the four was considered by the tribunal in our case.

…

13. The relevant clause in Tanton [1999] IRLR 367 was extreme. The individual there, at his own choice, need never turn up for work. He could, moreover, profit from his absence if he could find a cheaper substitute. He could choose the substitute and then in effect he would be the master. Properly regarded, Tanton [1999] IRLR 367 does not oblige the tribunal to conclude that under a contract of service the individual has, always and in every event, however exceptional, personally to provide his services. The tribunal, in a passage we have already cited, said:

'The last-mentioned case [Tanton [1999] IRLR 367] makes it clear that a contract of employment must necessarily contain an obligation on the part of the employee to provide his services personally.'

That citation is justified by Tanton [1999] IRLR 367 as that very sentence appears in Tanton [1999] IRLR 367's paragraph 30; but we have no reason to think that the Court of Appeal was there meaning to depart from the observation of MacKenna J in Ready Mixed Concrete as to limited delegation. Indeed, that very passage had been quoted by Peter Gibson LJ only three paragraphs earlier in Tanton [1999] IRLR 367. Tanton [1999] IRLR 367 indicates that if a contract contains a provision that the individual need not perform any services personally then it cannot be a contract of service – see paragraph 32 – and, so regarded, it does not deal with a limited ability to delegate such as that in the case before us. Tanton [1999] IRLR 367 was a case where the individual could at his own will perform his contract by sending along someone else. Our case, by contrast, is a case in which, in limited circumstances, it would not be a breach of the individual’s contract if, the individual being unable to attend, she arranged for another person approved by the employer to attend in her place. The tribunal erred in law in regarding Tanton [1999] IRLR 367 as driving them to the conclusion which they reached. We are therefore entitled to, and do, set aside their decision.

Similarly in Byrne Bros (Framework) Ltd v Baird [2002] ICR 667 the issue was whether a person was a worker within the Working Time Regulations, the definition in which required that the person “undertakes to do or perform personally any work or services for another party to the contract,” in circumstances in which there was a right to employ a substitute worker where the person was unable to provide he services.  Mr Recorder Underhill said:

12. …(2) Although the second sentence does indeed allow the subcontractor to provide a substitute, it only does so ‘where [he] is unable to provide the services’. Again, the exact scope of that phrase may be somewhat vague, but we cannot construe it as allowing him to provide a substitute whenever he chooses: if that were the intention, those words would be simply redundant.

…

14. It is, of course, a matter for assessment in relation to any given contract whether such delegation as may be permitted means that the contract cannot be regarded as a contract of service. Two recent cases have fallen on either side of the line – Express & Echo Publications Ltd v Tanton [1999] IRLR 367 and MacFarlane v Glasgow City Council [2001] IRLR 7, both of which were referred to by the tribunal. In Tanton, the putative employee, who was a driver, had an unrestricted right under the contract to appoint a substitute if he were ‘unable or unwilling to perform the services personally’ [emphasis supplied]; and the Court of Appeal held that this right was inconsistent with a contract of employment. In MacFarlane two gymnastics coaches working at the council's leisure centres were entitled to arrange for their classes to be covered by replacements on a register of coaches maintained by the council if they were ‘unable’ to take a class. The Employment Appeal Tribunal held that this was not incompatible with the existence of a contract of employment.

…

15. We agree with the tribunal that the essential facts in the present case bring it within the ratio of MacFarlane rather than Tanton. The power which the applicants had under the contract to appoint a substitute is qualified and exceptional.

Similarly, in James v Redcats (Brands) Ltd [2007] IRC 1006 Elias J said of a contract entitling a courier to send a substitute if he was “unable to work” through illness or childcare duties:

34. …If the parties had intended for Mrs James to work or not as she wished, they would surely have said so in clear terms and not in such an obfuscatory way. In my judgment there is plainly an obligation to perform the work personally. The critical feature here is that the substitute is to be provided when the individual is unable to provide work. That is narrower than the phrase ‘unable or unwilling’ which was the term used in the Tanton case, as the EAT recognised in the MacFarlane case. If I need not perform the work when I am unwilling, then there is never any obligation of any kind to perform it. It is entirely my will and therefore my choice. But if I can only be relieved of the duty when I am unable, then I must do the work personally if I am able.

35. I recognise that there is some artificiality in saying that someone who chooses to take holidays when not obliged to is unable to work, but even if the contract had entitled Mrs James to use a substitute whenever she was ‘unable to work or unwilling because taking holidays’ there would still in my view have been a personal obligation to work.

13.    The effect of these authorities is that a full right of substitution which has the effect that the person need never turn up there is no contract of service, but more limited rights of substitution do not prevent it.  Here I have found that there is an unfettered right of substitution.  Where the Appellant is informed in advance, which they prefer to be, there is a new contract made with the substitute consultant (through the agency of the first consultant if there is not direct agreement between the substitute and the Appellant.  But where the Appellant is not informed and the first consultant pays the substitute the question arises whether there is a direct contract between the Appellant and the substitute consultant.  Mr Tolley contended that there was such a contract and the original consultant merely obtains reimbursement for the amount paid to the substitute.  I am doubtful about this because the Appellant is unaware of the existence of the substitute. 

14.    Although in James the job was part-time and courier had limited discretion as to when she made deliveries and preferred to deliver on days of her choice, it seems to have been a continuing commitment, whereas here there are separate contracts for each shift that the consultant agrees to work. 

15.    In my view given the temporary and ad hoc nature of the Appellant’s bookings the right of substitution that I have found to exist would prevent there being a contract of service if that were in issue.  Similarly it prevents there being an obligation to render (or provide), personal services within the legislation applicable here.

Supervision, direction or control

16.    A further condition is that the worker must be “subject to, of to the right of, supervision, direction or control as to the manner in which he renders those services” (or slight differences of wording to the same effect).  The legislation leaves vague about who must (or have the right to) exercise such supervision, direction or control.  It seems to me that it is normally the client.  The legislation deals with workers who are obliged to provide services to the client and so normally it will be the client who needs to supervise, direct or control them.  In this case it would not matter if the cosmetics company or World Duty Free exercise supervision, direction or control (or have the right to do so) as both are in the position of the client even if contractually the cosmetics company is the client.  I have found that either or both of them have the right to exercise this even though in practice there is little or no exercise of such a right.

17.    There is no dispute about whether the worker is supplied by or through the Appellant, or (for NICs) about the payment arrangements being satisfied.

18.    Accordingly I allow the appeal on the basis that there is no obligation to render (or provide) personal service(s) within the legislation.

19.    This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009.   The application must be received by this Tribunal not later than 56 days after this decision is sent to that party.  The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.

 

 

JOHN F AVERY JONES

 

TRIBUNAL JUDGE

RELEASE DATE: 1 April 2010