I have received a phone call from a nhs nurse who has been offered work from agencies but she must either be in their umbrella company or set up her own ltd co. she will be going through two agencies for the work and that will be all nhs but lots of different hospitals so would she come under the ir35??
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Depends
Depends on her working practices :
- Is she under direction & control
- Can she substitute or she has to carry out the work personally
- Mutality of Obligation : can she pick & choose her work or is she obliged to accept work which is offered.
The above are the 3 key tests from Ready Mixed Concrete [1968] which are still used to diferentiate between employment & self employment.
Misconception
It is often misunderstood that IR35 relates to a service provider with only 1 client. That isn't necessarily so.
It is important to assess the true nature of the business relationship as evidenced by the contract and the real-life working practices that the contract should support.
Probably yes
Hard to see how a nurse could avoid IR35 really as she won't have any control over how she does her job. Surely she would have to follow hospital practice and be subject to supervision the same as all the other nurses. And I doubt that she could come and go as she pleases or send in other people to do her work.
Having said that, these are just the "golden bullets". There are other ways of avoiding IR35 which don't include these. Remember, you don't have to prove that you are self-employed (you're not anyway if you work through your own company. All you have to do under the IR35 legislation is prove (if it goes to appeal) that you would not have been an employee but for the interposition of the service company. Not quite the same thing.
However, even if she is caught by IR35, she may be able to take advantage of the temporary workplace rules to claim travel and subsistence, provided she reasonably and honestly expects to work somewhere else when her current contract ends (via her own company) well away from her current location.
Agency nursing and IR35
If the services are being provided in NHS hospitals then yes these would be inside IR35 engagements. If the services are being provided in private hospitals then it is likely that IR35 still applies owing to the rights of control that are likely to exist but would of course depend on the reality of the day-to-day working practices.
Kate Cottrell Bauer & Cottrell
Mutuality?
If the services are being provided in NHS hospitals then yes these would be inside IR35 engagements. If the services are being provided in private hospitals then it is likely that IR35 still applies owing to the rights of control that are likely to exist but would of course depend on the reality of the day-to-day working practices.
What about mutuality?
Mutuality?
What about mutuality indeed.
These are the Judge's comments in JLJ Services (the latest IR35 case) at paragraph 50.:
"There is considerable case law in relation to this test, progressively indicating that the test is of diminished importance, or that it is indeed meaningless."
To rely upon a lack of mutuality of obligation in isolation would in my opinion be foolhardy.
Kate Cottrell Bauer & Cottrell