IR35 news: Eamonn Holmes loses his IR35 case against HMRC

Last updated October 27, 2020

Holmes, a broadcaster for over 40 years, was providing his services through a limited company called Red, White and Green Limited (RWG). The company was set up in 2001 and around five years later, Holmes started presenting on ‘This Morning’, continuing to do so for about 15 years. HMRC detailed four particular contracts between ITV and RWG during the tax period 2011/12 and 2014/15 and deemed these contracts caught by IR35 legislation.

During gaps between the contracting periods Holmes had worked on various other programmes, including Sky as a newsreader and also worked for ’This Morning’ via another company called Holmes and Away Ltd.

If he was ill, it would be ITV that would find someone else to cover and RWG did not get paid for that other person’s services. It was agreed early on that ITV required Holmes’ personal service and he was not permitted to provide a replacement. The notes from the ITV and HMRC meeting confirmed that substitution was not permitted and it was considered a less important factor in this case.

Under the terms of the contract with ITV, RWG was required to procure Holmes’ services ‘on an exclusive basis’ during the specified period or on dates agreed with the executive producer. The specified dates included a list of Fridays, with exceptions in July and August, and Monday to Thursday dates in other weeks. Holmes was required to be ‘as flexible as possible’ regarding any changes to the dates and also stipulated that when ITV cancelled any dates and could not reschedule for reasons other than Holmes’ unavailability then RWG was entitled to payment in full for cancelled dates.

The tribunal also heard that for the tax years 2011/12 and 2012/13, RWG’s main income stream was from the work for ITV on ‘This Morning’. Holmes told the tribunal that he had a specialist role as the ‘anchor man’ and had been hired by ITV as a maverick who could hold an audience because of his specific expertise. As such, he was ‘effectively in total control of what needs to happen’ when on air.

Holmes stated he did his own research, wrote and asked questions he developed and was only following a prepared script ‘10% of the time’. He described himself as a freelance journalist and broadcaster and as a ‘gun for hire on my terms’, with engagers signing up for his ‘USP and profile’. He said his work with Sky News between 2011 and 2015 occupied more of his time than his ‘This Morning’ duties and that he carried out a large number of other engagements on a self-employed basis.

Holmes was paid a fixed fee for each programme and the contract gave Holmes additional benefits including the provision of a car for travel to the studio, a clothing allowance of around £5,000 and expenses for travel and accommodation for certain trips.

The tribunal heard a number of arguments about the level of control ITV exerted over Holmes’ work. The judge concluded that whether Holmes was employed by RWG was not relevant to the analysis of whether ITV controlled Holmes under the assumed contracts. It then went on to consider mutuality of obligation between the company and the broadcaster and the issue of substitution of services.

Holmes’ representatives argued that he carried out many of his activities under his own name and was taxed as a person carrying on a profession.

Individual engagements should be looked at in the context of his business activities as a whole, and ‘what at first sight might appear to be employment, may simply be an incident of the worker’s overall professional activities.’

Similarly, it was wrong to view ITV as being able to control Holmes such as to be ‘his master’, as the situation was analogous to a chef hired to cook a meal. While ITV provided ingredients, it was Holmes alone who supplied the final result.

Holmes’ lawyer also argued that RWG was paid fees, rather than a salary, and there was no provision regarding pension, holidays, sick pay or training.

For its part, HMRC said RWG’s contract painted a picture of ‘regular, predictable and substantial part-time employment’ arguing that ITV had demonstrated the right to control, as it determined whether the programme went out and ensured it met with all regulatory guidelines. In that sense, it was not correct, as Holmes asserted, that the presenter was ‘answerable to no one but myself’.

In addition, Holmes was required to seek ITV’s permission to undertake certain other commercial activities and RWG took on no risk in the contracts, which were renewed.


Sufficient mutuality

The judge found there was sufficient mutuality and a framework of control to deem the contract between ITV and RWG as one of employment. ITV was required to provide work on specified dates for a fixed fee, and Holmes was required to accept the work on those dates for the fee.

The tribunal heard how contracts between ITV and RWG would stipulate fixed dates upon which Holmes was expected to provide services to ITV, and that Holmes was contractually entitled to payment in full for dates cancelled by the broadcaster. These terms appeared at odds to the actual reality, but were relied upon in the decision.


The judge said the fact that ITV lacks the ability in the immediate sense to control Holmes’ action in how he provided his services during a live broadcast did not mean that assumed relationship could not be categorised as an employment contract.

Controversially, in terms of control, ITV had full control of editorial content, was able to restrict Holmes’ other commercial activities and could require him not to appear on the programme in branded clothing. Even if at times, as he claimed, Holmes ‘did his own thing’, the contract contained the expectation of control.

Unusually, the judgment also stated that Holmes was required to comply with health and safety guidelines, he was not to endorse any products or services during the show and the fact that ITV had the contractual right to restrict Holmes’ other activities to some extent. These factors are compulsory in the normal course of business regardless of employment status.

Other factors

Holmes also said that when he had a double hip replacement in 2016, ITV did not pay him any sick leave and he did not get any holiday leave. Holmes’ lawyer argued that unlike other ITV employees, Holmes did not have any of the employee benefits.

Judge Harriet Morgan rejected this view stating: ‘I cannot see that, under the principles set out in case law, the provision of any additional enhanced benefits, in excess of the statutory minimum, is an integral part of an employment relationship.

‘In my view, the fact that a putative employer has chosen not to provide such benefits does not of itself indicate that a relationship is not one of employment where the other substantive legal rights and obligations of the parties evidence the contrary.’

The case itself is very similar to the other presenter cases, and from the facts of the case it’s hard to recognise how Mr Holmes has been treated differently to Lorraine Kelly, who also worked at ITV yet who won her appeal. It is worth noting that the judgment makes reference to Eamon Holmes’ personality and appears not to take too kindly to his questioning.

With the new legislation just round the corner the case again reiterates the importance of the clarity of working arrangements and contracts between the parties.

The Tribunal concluded that ‘on that basis and, having regard to all other relevant factors, my view is that overall, throughout all relevant tax years, the assumed relationship between ITV and Mr Holmes was one of an employment rather than self-employment.’


You can read up-to-date news about IR35 here

IR35 news: Eamonn Holmes loses his IR35 case against HMRC

HMRC “kicks back” in latest IR35 case 

Last updated October 27, 2020

Related IR35 content

Umbrella consultation underway

The government has launched a consultation into the role that umbrella companies play in the labour market and how they…

Read more

Former SKY Sports presenter landing with heavy IR35 tax bill

Former SKY Sports presenter Dave Clark has lost his IR35 tribunal appeal against HM Revenue and Customs. The decision relates…

Read more

Blanket contractor IR35 decisions U-turn by Network Rail recently reported that Network Rail appears to have performed a U-turn of its IR35 blanket decisions for the rail…

Read more

HM Courts & Tribunal Service becomes the third government department to be hit with IR35 tax bill

Government departments have been in the news recently for their incorrect assessments of the employment status of their contractors in…

Read more

Home Office hit with huge IR35 tax bill

It has recently emerged that the Home Office has been hit with a £33.5 million IR35 tax bill after a…

Read more

DWP hit with huge tax bill for historic IR35 contractor status assessment errors

It has emerged that the Department for Work & Pensions (DWP) was hit with a huge £87.9 million tax bill…

Read more

IR35 private sector changes to go ahead next week

Changes to IR35 in the private sector will go ahead on 6th April 2021, despite hopes for a further delay….

Read more

Kaye Adams wins case and is ruled outside IR35 due to being ‘in business on own account’

In a landmark IR35 case that will be welcomed by PSCs, but will not be widely applied, television presenter Kaye…

Read more

UK Supreme Court rules that Uber drivers are workers not self-employed

The Supreme Court’s unanimous decision should come as no surprise given that Uber’s appeal follows an Employment Tribunal ruling against…

Read more

Private sector IR35 soon to be reality

On April 6th 2021, the contractor’s worst scenario will become reality… IR35 in the private sector will finally go live….

Read more

Just 2 months left until the IR35 reform: what do contractors need to know?

On the 6th April 2021, the IR35 private sector changes will come into effect. With this date now just a…

Read more

The blanket approach to IR35

The delay in the introduction of the IR35 legislation allowed contractors and their clients extra time to prepare. It also…

Read more

IR35 news: Eamonn Holmes loses his IR35 case against HMRC

Holmes, a broadcaster for over 40 years, was providing his services through a limited company called Red, White and Green…

Read more

HMRC “kicks back” in latest IR35 case

HMRC “kicks back” at Upper Tribunal in latest win against Paul Hawksbee In July 2019 we saw the fight between…

Read more

Off-payroll working in the private sector

Despite the protests and lobbying of the Government, the only reference in the Budget notes makes it very clear that…

Read more

The impact of finance sector IR35 decisions on contractors

IR35 reform to the private sector was already having a negative impact on contractors working in the finance sector prior…

Read more

Lord’s committee expresses concerns over IR35

IR35 off-payroll reform was due to be rolled-out to the private sector on April 6th of this year, but due…

Read more

Suggestions to move IR35 reforms to 2023 are rejected

Amendments to the IR35 private sector are set to go ahead from April 2021, despite suggestions from a Conservative MP…

Read more

COVID-19 and IR35: Should your clients relax now the legislation is postponed?

Steve Barclay, the Chief Secretary to the Treasury, announced that due to the effects of Covid-19 (Coronavirus), the changes to…

Read more

11th hour delay for IR35 private sector reform due to COVID-19 welcomed

The Government has delayed its controversial IR35 private sector reform by one year, until April 2021, because of the COVID-19…

Read more

No delay to IR35 rollout as the Government launches off-payroll review

The Government launched its off-payroll review on January 7th with regards to the implementation of the changes to the off-payroll…

Read more

What are the political parties saying about IR35?

In April 2020 the contractor and freelance community are set to be hit by changes to IR35 legislation which could…

Read more

Six reasons for PSCs to be proactive to respond to the IR35 private sector changes and not wait until April 2020 to do so!

Since April 2000, the Intermediaries legislation has made the individual contractor trading through his/her own Personal Service Company (PSC) the…

Read more

What impact will IR35 reforms have on North Sea operators?

With high levels of talent engaged through off payroll structures in the energy sector, the North Sea operators will feel…

Read more

Are you ready for IR35 changes?

Proposed changes to IR35 legislation could mean thousands of contractors may pay more tax. With the Government’s consultation on contracting…

Read more

IR35 and CEST Update

The IR35 story continues to rumble on taking twists and turns along the way and most of us believe it…

Read more

U-Turn on Self-employed NIC but no change to Public Sector rules on IR35

The ink has yet to dry on Philip Hammond’s first budget as Chancellor but his proposed national insurance increases for…

Read more

IR35 Products & services

Caunce O’Hara’s partnership with Markel enables us to offer a broad range of IR35-based products to protect contractors, fee-payers and end clients across the UK.

IR35 Hub Related IR35 content