Stuart Barnes, rugby commentator at Sky

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

No substitution has happened on this engagement

Appendix term (3): "Mr Barnes had no right to provide a substitute when he was unable to provide the required services personally. Sky would choose and arrange for any substitute and would pay the substitute directly." No substitution by him occurred or could occur. Term (2) obliged him to perform personally as the named Personnel.

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

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

Appendix term (3) gives no right of substitution at all: where Mr Barnes could not appear, the replacement was Sky’s choice and Sky’s cost, not his. Encoded as a client that would reject, which is the closest available answer to a contract that does not permit substitution in the first place.

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

Yes, without needing my agreement

Appendix term (9): "Sky would have the right to allocate Mr Barnes from the roster of commentators to cover a specific game ... Sky had control over the location, the date, and which match Mr Barnes would cover, subject to any reasonable alternatives being suggested by Mr Barnes." Terms (4)(d) to (4)(g) add other services as approved by the Head of Rugby Union, interview requests from Sky Sports News and ad hoc promotional events.

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

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

Appendix terms (13) and (16). Sky "would have full editorial control over any programme and Mr Barnes would have to follow the reasonable requests of the executive producer", and he was "expected to work under the direction of Sky’s production manager in charge of the programme" and to adhere to the running order. Against that, "The content of the pre-match broadcast, and of the live commentary would be Mr Barnes’ sole responsibility, subject to prior clearance with the executive producer in relation to the themes to be covered." Encoded as agreeing the approach with others.

Who controls when you work — the days and hours?

I agree my schedule with the client

The distinguishing feature of this case, and the point the FTT relied on most heavily. Appendix term (5) gives Sky "first call" on up to 228 days a year, but term (6) makes the exercise of that right "subject to Mr Barnes’ availability in conjunction with his standing commitments to the newspaper columns", with his coverage of the Six Nations, British and Irish Lions and World Cup matches taking priority over Sky’s own fixtures. A first call right that yields to the worker’s other commitments is encoded as an agreed schedule rather than one the client dictates.

Who decides where you carry out the work?

I agree the location with the client or others

Appendix term (9): Sky "had control over the location, the date, and which match Mr Barnes would cover, subject to any reasonable alternatives being suggested by Mr Barnes, whether it be location (such as not covering matches in Scotland in two consecutive weekends) or the interest of the match". Encoded as agreed with others rather than dictated, on the strength of the worked examples the tribunal gave.

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

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?

No

Encoded false. Appendix term (17) put the cost of studio equipment, travel and accommodation on Sky and reimbursed his approved expenses on receipts, so no significant work expense sat with him at his own risk. See the note on expensesAreNotRelevantForRole for the category actually selected.

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

Yes — expenses are not relevant for this kind of work

Appendix term (17): "Sky would provide all necessary studio equipment ... including microphone and earpieces, and the necessary travel and accommodation bookings to enable location performance of the Services to take place. Sky would reimburse any reasonable expenses claimed by Mr Barnes, upon submission of receipts and if approved by Sky." No category of work cost sat with him at his own risk. CEST requires exactly one of the five cost categories to be selected, and this is the only one the findings support. Term (4)(c) does record research and script drafting done "in his own time", but unpaid preparation time is not a funded expense.

How are you mainly paid for this work?

Fixed price for the project or deliverable

Appendix terms (11) and (12): an annual fee rising from £235,000 to £265,000, "payable in equal monthly instalments in arrears upon the rendering of an invoice", and expressly "fixed in advance, and would not be calibrated to the actual number of days Mr Barnes would be on air for Sky".

If you delivered substandard work, what would happen?

The work cannot be corrected once done

Inferred. The appendix does not address rectification. The principal service was live co-commentary on broadcast matches, which cannot be re-performed once transmitted. Encoded on the same basis as the live radio broadcast in Atholl House. This is one of the weaker answers in this encoding.

Do you receive employee-type benefits from the client?

Yes

Appendix term (20), and the most contestable answer in this case: "the Fixed Fee per annum would be agreed on the basis as to include a sum to satisfy Mr Barnes’ ‘paid holiday entitlement’ under the Working time Regulations 1998". Encoded true because a contractual holiday pay element is the archetypal employee benefit, and encoding it false would conceal a term that appears in no other case in this study. The same term records that he "would have no contractual rights ... to be paid for absences caused by sickness", which points the other way.

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

No

No finding that Mr Barnes managed anyone. Appendix terms (13) and (16) place him under the direction of the executive producer and Sky’s production manager, so the line ran towards him.

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

Yes

He commentated to Sky’s subscribers on air, and appendix terms (4)(e) to (4)(g) add interviews for Sky Sports News and Sky News and "Ad hoc requests for any promotional or publicity events (such as the pre-Guinness Pro 12 PR event with press and radio)".

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

As an independent contractor or consultant

Encoded as working as an independent on the FTT’s primary findings, which the Upper Tribunal expressly left undisturbed at paragraph 115. The FTT found all his engagements contributed to "one and the same enterprise of being ‘Stuart Barnes, the voice of rugby’", a finding the tribunal in PD & MJ relied on at paragraph 71 to distinguish this case from its own. Note that the Upper Tribunal still remade the decision as employment, so this factor did not carry the result.

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

Appendix term (5) gives Sky a right of first call, not an obligation to use him, and term (12) makes the annual fee "fixed in advance" and not calibrated to days on air, so Sky paid whether or not it called on him. 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

Appendix term (1): "The contract would be for a fixed term of 4 years, extendable by another 2 years to coincide with the expiry of Sky’s rights to broadcast the European International Championship, and subject to further renewal by mutual agreement." A four to six year term with a renewal mechanism is encoded as an expectation of continuation. 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

Appendix term (6) records "standing commitments to the newspaper columns" and coverage of high-profile matches Sky had no rights to, which took priority over Sky’s fixtures. Term (8) makes the exclusivity a UK broadcasting exclusivity only, with consent not to be unreasonably withheld for overseas work. This is the clearest case of genuine parallel engagements in the study. Verdict-only field.

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

NoCEST does not assess this

Not established. The appendix sets out the terms of the hypothetical contract in twenty numbered paragraphs and none of them deals with insurance, unlike the Sky contract in PD & MJ where clause 12 required cover. Encoded false rather than assumed. Verdict-only field.