OFF PAYROLL WORKING

can an individual work simple off payroll

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Can an individual simple work off payroll for an agency without his/her PSC or umbrella company? 

My client is currently working off payroll to an agency via his PSC but no point keeping the company now. The agency says he can simple work off payroll without using an umbrella company or PSC. Is this possible? What would be the status of my client? He has no contract with the agency. He would be simple a worker 

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By David Ex
06th Oct 2021 11:17

freshapple wrote:

He would be simple a worker 

Or indeed an employee.

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Replying to David Ex:
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By freshapple
06th Oct 2021 11:21

the agency is not paying him holidays/sick pay. They simple say my client is working off payroll. What rights has he got? Can the agency be forced to employ him?

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Replying to freshapple:
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By David Ex
06th Oct 2021 11:31

freshapple wrote:

Can the agency be forced to employ him?

Apparently not. I don’t know the ins and outs of the rules but the agency shouting “off payroll” is meaningless. The facts need to be examined to determine the correct tax and employment law position.

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Stepurhan
By stepurhan
06th Oct 2021 11:35

The agency can say he is working off payroll all they like. Whether he is actually working off payroll is another matter depending on the facts.

There no such thing as "simply a worker". In broad terms they are likely to be employed or self-employed.

It is also fairly unlikely he does not have any contract with the agency. The agency isn't just randomly pulling people off the street and pushing them towards customers. There must be some agreement on your client agreeing to the agency putting them forward for work as a bare minimum.

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By paul.benny
06th Oct 2021 11:49

freshapple wrote:

Can an individual simple work off payroll for an agency without his/her PSC or umbrella company? 

No. If no PSC or umbrella company, and worker is being paid by agency, s/he is almost certainly an employee of agency. Which means they must operate PAYE and pay holidays

freshapple wrote:
My client is currently working off payroll to an agency via his PSC but no point keeping the company now.

If client is working through PSC, why do you say no point? Do you mean the job is inisde IR35 and therefore host company is deducting PAYE?

freshapple wrote:
The agency says he can simple work off payroll without using an umbrella company or PSC. Is this possible?

No. See above

freshapple wrote:

What would be the status of my client? He has no contract with the agency.

There may be no written contract but there is contract. In the absence of a document, the law imputes certain terms. I recommend guidance here https://www.citizensadvice.org.uk/work/rights-at-work/
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Replying to paul.benny:
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By freshapple
06th Oct 2021 13:10

Currently my client is working through his PSC via the agency and he is in IR35. He has only 1 end client and he has been working for them for a long time. Agency is deducting PAYE&NI and paying the PSC. My client does not want to keep his PSC for this reason but still would like to work for the agency. The agency said he can do it working as off payroll worker. It looks like the agency do not want to pay him holiday/sick pay

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Replying to freshapple:
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By paul.benny
06th Oct 2021 13:51

That's a rather clearer explanation than in the OP. I'm not an employment lawyer, but afaik, the employment rights of those working inside IR35 are unresolved.

My opinion is that Client should look to be hired by host company as regular employee.

Agency is right, btw. Off payroll, yes. Sort of. But outside tax, no.

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Replying to paul.benny:
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By freshapple
06th Oct 2021 14:48

if my client does not use his PSC then he will be an agency worker and the agency has to pay holiday/sick pay to him after a certain amount of time according to the Agency Workers Regulations. So the agency can not just say you are off payroll worker. This is how I see.

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By Sandnickel
06th Oct 2021 12:12

Depending on the circumstances he can be self employed which is, I'm guessing, what the agency means. In effect he will therefore be operating as a sole trader.

Is your client within IR35 at the moment?

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Replying to Sandnickel:
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By freshapple
06th Oct 2021 13:12

yes, he is within IR35 at the moment and will stay in because he has been working for the same end client for a while.

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By SteveHa
06th Oct 2021 13:47

The agency is talking gobbledegook.

If he is within IR35 now, then he'll be within IR35 whatever they do. They should just employ him and have done with it.

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By nick farrow
18th Jan 2022 17:50

isn't it better to be off payroll using your PSC rather than within IR35 using your own PSC as under the former the client is responsible and liable for Class 1 secondary (ers) contributions?

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By Hugo Fair
18th Jan 2022 18:51

I'm puzzled (although that may be due to end of long day) ... but OP said in an early response "Currently my client is working through his PSC via the agency and he is in IR35. He has only 1 end client and he has been working for them for a long time."

So the simplest solution (and what would make HMRC deliriously happy) would be for client to become an employee - but of the 'end client' not of the agency. This may not be an option but would be the simplest (and would serve the agency right)!

Leaving aside all the (interesting) issues surrounding employment rights etc, it's hard to see what benefit would accrue to client via being employed by the agency (who patently have no intention of offering this anyway).

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