HMRC internal manual

Employment Status Manual

ESM7055 - Case Law: Fall v Hitchen

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1972 case – 49TC433

Point at issueWhether a professional dancer was engaged under a contract of service or whether he was exercising his profession and therefore engaged under a contract for services.

FactsMr Hitchen was a professional dancer who, after finishing his training, was engaged by Sadler’s Wells Trust under a standard ballet dancer’s contract. Mr Hitchen had applied for, but had been unsuccessful in obtaining, other work.

DecisionVice-Chancellor Pennycuick followed Cooke J’s judgment in Ready Mixed Concrete (see

ESM7030) and considered all the various relevant factors, which he thought pointed to the conclusion that Mr Hitchen was not in business on his own account. The contract was therefore held to be a contract of service.

CommentaryAlthough Mr Hitchen may at the same time have been carrying on his profession as a dancer, the contract with Sadler’s Wells was a contract of service. He was in repertory earning a steady income whether or not he was called upon to perform or rehearse. The particular engagement with Sadler’s Wells was “in the nature of a post”.

The principle established was that, in the case of a professional person, the nature of a particular contract has to be determined first of all. Only if the contract is a contract for services could it be considered to be an incident in the carrying on of that profession.

In determining the nature of a contract, the later case of Hall v Lorimer (see ESM7160) suggests the length of engagements and the number of different engagements may however have to be taken into account.