Alan Parry Productions Ltd lost its IR35 appeal in 2022 after the First-tier Tribunal found that football commentator Alan Parry would have been an employee of BSkyB if he had contracted with the broadcaster directly.
Parry had commentated for BSkyB since 1996. During the years covered by HMRC’s determinations, he supplied his services through Alan Parry Productions Ltd, his personal service company.
The appeal covered the tax years 2013/14 to 2018/19. The tribunal examined the written agreements between the company and BSkyB, how Parry actually worked, and the wider relationship that had developed over more than two decades.
Alan Parry’s work for BSkyB
Parry was an experienced football commentator and one of BSkyB’s regular lead commentators. His work was mainly live commentary, although the contracts described a wider range of possible services, including presenting, interviewing, and other programme work.
BSkyB selected the matches it wanted him to cover and contacted him about his availability. He would generally commentate on one or two matches a week during the football season.
There was little day-to-day supervision of the commentary itself. Parry did his own research, decided how he wanted to prepare, and was not obliged to use statistics supplied by BSkyB. He would normally arrive at the ground several hours before kick-off, speak to the producer, director and co-commentator and gather information from the teams.
Once a match started, he chose what to say and how to say it. The producer and director could pass him information or give cues during the broadcast, but the tribunal accepted that Parry exercised substantial professional judgment in delivering the commentary.
That freedom reflected the job he had been engaged to do. BSkyB had retained an experienced broadcaster and did not need to tell him how to describe a football match minute by minute.
The contracts and substitution
The tribunal considered four written agreements covering August 2010 to July 2019. Their terms changed somewhat over the years, although the basic relationship remained similar.
Later agreements referred to Parry providing services for up to 20 matches each year, with further payments where that figure was exceeded. The fees were paid in regular monthly instalments.
The contracts also allowed Alan Parry Productions Ltd to propose another person to provide the services. Any replacement had to be acceptable to BSkyB, and subcontracting required its consent.
The company never provided a substitute.
On the one occasion during the relevant period when illness prevented Parry from covering a match, BSkyB arranged another commentator from its own pool. Parry did not nominate somebody to take his place.
The tribunal accepted that there was a contractual right to propose a substitute, but the identity of the person doing the work plainly mattered to BSkyB. It had engaged Parry for his own broadcasting skills and reputation.
Applying the Supreme Court’s approach in Pimlico Plumbers Ltd v Smith, Judge Beare found that personal performance by Parry was the dominant feature of the hypothetical contracts.
BSkyB’s control
Parry’s freedom when speaking on air was only part of the control question.
BSkyB chose the matches for which it wanted his services and whether he would work from a football ground or a studio. The contracts were also wide enough for the broadcaster to require presenting, interviewing, promotional work and other broadcasting services.
Some of the later terms covered matters such as social media, clothing and conduct. BSkyB also had contractual rights relating to work Parry might undertake for other media organisations.
In practice, the relationship was less formal than the agreements suggested. Parry regarded himself as an experienced freelance broadcaster rather than somebody taking everyday instructions from BSkyB, and there was little reason for the broadcaster to interfere in the mechanics of his commentary.
The tribunal still found that BSkyB had sufficient control. Its producer remained responsible for the programme, and the broadcaster had the contractual authority to direct Parry where necessary. His professional autonomy during a live match sat within that wider framework.
See our guide to control and IR35.
Other broadcasting work
Parry did not work exclusively for BSkyB. He also provided commentary for organisations including IMG and TalkSport and said he did so without asking BSkyB for permission.
The written agreements gave a somewhat different picture. BSkyB had first call on his services, and the contracts restricted work for other television, radio and media organisations. Later agreements extended some of those restrictions further.
The tribunal took account of both the work Parry actually carried out elsewhere and BSkyB’s contractual rights over competing engagements.
There was no suggestion that Parry lacked professional independence as a broadcaster. The question was whether the relationship with BSkyB looked like a contract with an independent business or a contract of employment once all its terms were considered together.
The wider relationship with BSkyB
Some parts of the arrangements supported Alan Parry Productions Ltd’s case.
Parry received no employee appraisal or ongoing training from BSkyB. The agreements included provisions on insurance, indemnities, and responsibility for defective work, all of which could point to the existence of a commercial contract.
But the BSkyB relationship dominated his working life during the years under appeal. He had been commentating for the broadcaster since 1996 and derived all or nearly all of his income from it during the relevant period.
BSkyB supplied the equipment required for the broadcasts and reimbursed most of his expenses. The regular fee arrangement also exposed Alan Parry Productions Ltd to little significant financial risk on the work.
The tribunal paid particular attention to Parry’s place within the live football operation. He worked alongside the producer, director, co-commentator and the rest of the production team to deliver BSkyB’s programme.
Judge Beare found that Parry had become part and parcel of BSkyB’s organisation.
Our part and parcel and integration guide looks at how this test has been used in other employment status cases.
Mutuality of obligation
The contracts required Parry to provide his services during their term in return for the agreed remuneration. Although individual matches involved discussion about availability, the tribunal found sufficient mutual obligations within the contractual relationship.
The fact that Parry could undertake some work elsewhere did not change the obligations he had accepted under his BSkyB agreements, including the broadcaster’s first call on his services.
The tribunal therefore found both personal service and the mutuality of obligation required by the first stage of the employment status test.
The First-tier Tribunal decision
The tribunal applied the employment status framework set out in the Court of Appeal’s decision in Atholl House Productions Ltd v HMRC.
It accepted several features of the relationship which pointed towards independent contracting. Parry was left largely to his own devices when preparing and delivering commentary, carried out some work for other organisations and contracted through agreements containing insurance and commercial liability provisions.
Against that were BSkyB’s contractual control, the requirement for Parry’s personal services, the first-call arrangements, his long association with the broadcaster, the limited financial risk and his position within its football production team.
Looking at the hypothetical contracts as a whole, Judge Beare found that their terms were consistent with employment.
The hypothetical contracts between Parry and BSkyB were contracts of service. Alan Parry Productions Ltd’s appeals were dismissed, and IR35 applied for the tax years 2013/14 to 2018/19.
See the other decisions in our IR35 case law guide.
Judgment
Alan Parry Productions Limited v The Commissioners for Her Majesty’s Revenue and Customs [2022] UKFTT 194 (TC), TC08519.
The Tribunal heard the appeal remotely on 27, 30 and 31 May 2022, with Tribunal Judge Beare. The Tribunal released the decision on 16 June 2022.
Read the First-tier Tribunal decision at The National Archives.