Phil Thompson, football pundit at Sky

Has a substitute ever actually worked in your place on this engagement?

No substitution has happened on this engagement

No substitution occurred. Paragraph 7(4)(a) records a right for the Company to propose other employees or sub-contractors, but paragraph 56 finds that in the hypothetical contract "services would be provided by Mr Thompson rather than by the Company", and no instance of substitution appears in the findings.

If you needed to send a substitute, could the client reject them?

Yes — the client could reject a substitute, or has an approval veto

Paragraph 7(4)(b), quoting clause 1.2: "If the Company makes a proposal under Clause 1.1, BSkyB will have the right to assess the suitability of the substitute prior to the substitution. If BSkyB find the substitute to be suitable, they will confirm this in writing." A right of substitution conditional on the client assessing suitability and confirming in writing is encoded as a client that would reject.

Can the client move you to different tasks or work areas on this engagement?

Yes, without needing my agreement

Clause 2.7, quoted at paragraph 7(5)(d): Sky had "first call" and "at no additional cost to BSkyB the Company shall procure that all Personnel shall attend at BSkyB’s request for the purposes of press and/or promotional events, call centre visits, recording trailers and/or other promotional material ... and/or other services reasonably required by BskyB". Paragraph 67(1) finds Mr Thompson "would not have a right of refusal or a right to require mutual agreement", subject only to an implied term of reasonableness.

Who decides how you do your work — the methods and approach you use?

I agree how to do it with others (client team, colleagues)

Two-sided, and the tribunal treated it as such. Paragraph 64: preparatory work could be done when and how he chose and "the content would be determined solely by Mr Thompson", but he "would be expected to fit his punditry into the running order of the programme determined by Sky and to follow reasonable directions and instructions as to the subject matters". Clause 4.1 required compliance with "all directions and requests", which paragraph 51 reads subject to an implied term of reasonableness. Encoded as agreeing the approach with others.

Who controls when you work — the days and hours?

The client decides my schedule

Paragraph 67(1): "Sky would have the contractual right to decide when the services were to be provided and this would be on a first call basis." Clause 2.6 required performance "at such time and dates (including bank holidays and weekends and anti-social hours) as may be required by BSkyB". Paragraph 46 rejects the argument that "ad hoc as and when required" imported any right of refusal or mutual agreement.

Who decides where you carry out the work?

I cannot choose — I must work at the client's location

Paragraph 67(2): "Sky would have the contractual right to decide where the services were to be provided ... this would not be subject to mutual agreement." Clause 2.6 required travel "to any destination both inside and outside the Territory". Paragraph 61 expressly rejects an implied term making location a matter of agreement, noting that delivery in practice at the London studio or in Liverpool did not limit Sky’s contractual right.

Did you purchase and supply significant raw materials for this work?

No

Did you provide significant specialist equipment of your own for this work?

No

No finding that Mr Thompson provided equipment. The services were studio punditry on Soccer Saturday and mid-week games, delivered through Sky’s production, with paragraph 67(4) recording that Sky "retained control over confidential information and intellectual property arising out of the services".

Did you use your own vehicle as a primary work tool on this engagement?

No

Did you incur significant other work-related expenses at your own risk?

Yes

Paragraph 7(5)(b): the Company was "To correct any defective work at the Company’s own cost", and paragraph 7(16) records that clause 12 "required the Company to obtain and maintain insurance". Both are costs the Company carried before Sky paid.

Are significant work expenses simply not applicable to this type of role?

No — expenses could be relevant but I didn't have them

How are you mainly paid for this work?

Fixed price for the project or deliverable

Paragraph 7(3): the fee was set for each year of the assignment and "paid monthly in arrears", and paragraph 7(7) records payment "in equal monthly instalments". Paragraph 68(7) describes it as "a block fee regardless of air time", which is a fixed sum for the assignment rather than payment per unit of time worked. Encoded on the same basis as the Minimum Fee in Atholl House.

If you delivered substandard work, what would happen?

I would fix it in my own time at no extra charge to the client

Paragraph 7(5)(b): the Company’s duties included correcting "any defective work at the Company’s own cost". Encoded as putting it right at his own expense rather than at the client’s.

Do you receive employee-type benefits from the client?

No

Paragraph 68(11): "The absence of perks offered by Sky to employees (primarily free Sky television) does tend against Mr Thompson and Sky treating Mr Thompson as an employee." This was the single factor the tribunal identified as pointing away from employment, and it found it outweighed by the others.

Do you manage any of the client's employees — acting as their line manager?

No

No finding that Mr Thompson managed anyone. He appeared as a panellist on Soccer Saturday and the judgment describes no supervisory responsibility over Sky staff or other contributors.

Do you have direct contact with the client's customers or end clients?

Yes

He presented to Sky’s subscribers on air, and clause 2.7 additionally required attendance at Sky’s request for "press and/or promotional events, call centre visits, recording trailers and/or other promotional material". Contact with the client’s audience is inherent in the role, encoded on the same basis as Atholl House.

When you interact with customers, how do you present yourself?

As an employee or representative of the client's business

Paragraph 68(6): "Whilst Mr Thompson had his own status and character as a result of his expertise and professional background, he had become associated with Soccer Saturday", and he accepted in evidence that "the viewing public would expect him to be on their screens on a Saturday". Paragraph 71 distinguishes Barnes on precisely this point, finding "Mr Thompson was more closely associated with Sky than any other professional activities that he was carrying out at that time".

Is the client obliged to offer you work, and are you obliged to accept it, throughout this engagement?

No — either party can stop without obligationCEST does not assess this

Paragraph 66 finds mutuality: his obligation to provide the services, Sky’s obligation to pay the agreed fee. But the assignment was "on an ad hoc as and when required basis" with Sky deciding when services were required, and the fee was a block fee payable regardless of air time. So Sky was obliged to pay but not to call on him, which is the same shape as the BBC Minimum Fee in Atholl House and is encoded the same way. Verdict-only field.

When this contract ends, would you be surprised if the client did not offer you more work or extend?

Yes — I expect it to continue and would be surprised if it didn'tCEST does not assess this

The assignments ran in two-year blocks, with a 2013 Contract followed by a 2015 Contract on substantially replicated terms, and paragraph 68(6) records that he had become associated with Soccer Saturday in the mind of the viewing public. Encoded true on that pattern of renewal. Paragraph 70 notes the tribunal disregarded his later move to employment, and so does this encoding. Verdict-only field.

Are you working for multiple clients simultaneously, or have you actively marketed your services to others in the past 12 months?

Yes — I have or actively seek multiple clientsCEST does not assess this

Encoded true but heavily qualified. Paragraph 68(8) finds his Sky work "was the substantial majority (an average of 80% during the relevant periods) of the Company’s earnings" and that "his services for Sky did not take place against a background of the majority of Mr Thompson’s professional income coming from a range of self-employed engagements". So other engagements existed but were a minority, and clause 2.1 barred similar services to other broadcasters without Sky’s consent. The bare true overstates his independence, and the tribunal’s own weighing is the better guide. Verdict-only field.

Do you hold professional indemnity or public liability insurance in your own name or through your company?

Yes — I maintain my own professional insuranceCEST does not assess this

Paragraph 7(16): "Paragraph 12 of the Terms and Conditions required the Company to obtain and maintain insurance." One of only two cases in this study where business insurance is established on the face of the judgment rather than absent. Verdict-only field.