Has anyone successfully argued with HMRC that a driver who does not own their own vehicle is self employed? The case here involved drivers being asked at short notice to turn up and drive liveried vehicles to cover holidays/sick leave. Drivers do not work exclusively for my client but there is no evidence of use of subsitutes. Any similar experience resulting in a successful outcome would be welcomed.
R H
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I agree ....
I think HMRC are being optimistic with their argument. I have an ultrasound professional and we won a status argument in that as the equipment costs circa £60k ir was unreasonable to expect her to own it. Sure a large lorry must cost something similar?
What HMRC Say
Just because "HMRC ... say in this case provision of equipment is crucial", this does not mean they believe it to be so. It merely means they want to win the case.
Stick to your guns
We've successfully dealt with a few of these cases.
For case law Ready Mixed Concrete and Express Echo were concerned with lorry drivers as was Interlink Express & Night Truckers.
The provision of equipment - however crucial to the job - is NOT crucial to status. Surely a vision mixing machine is crucial to the job for a vision mixer? (Hall v Lorimer)
It comes back to the three main conditions. Don't be afraid to tell HMRC that the provision of equipment is not relevant and that you refuse to discuss that point with them further - otherwise you'll waste too much time on this area - stick to the main conditions.
Good luck
It depends on circumstances
I've only ever negotiated on this specific point with HMRC on one occasion and the results were :-
1) The lorry driver who was also self-employed as a mechanic (with several customers) as well as a driver was ACCEPTED as having self-employed status in his driving activities.
2) The lorry driver whose ONLY self-employment was for the one customer was reclassified as an employee but NOT back-dated
The only difference between the two drivers was that one driver was 100% reliant on his one customer for whom he drove as a source of income.
This was about 10 years ago.
Provision of equipment
HMRC disagree, we have raised all these cases but they say in this case provision of equipment is crucial as it is such a key part of the work. We have argued that the work being undertaken is not carriage but the provision of labour only drivers hence workers are not required to provide own equipment.
Work can be turned down, and has been, has been fairly regular but not every week/month .
Mutuality of obligations??
Provision of equipment is not a major factor. There are lots of cases where no equipment was provided by the self-employed worker - Hall v Lorimer, Brabyn v Barnett, Tanton v Express & Echo Publications and MAL Scaffolding for example.
How regular is the work?
Do they always do the work or do they sometimes turn it down?
Is it more like Mrs Carmichael (Carmichael v National Power - guide at a power station) who didn't always do the work and was self-employed or is there an expectation that work will always be offered and accepted (Nethermere v Gardiner - sewing machine outworker) so it's more like Mrs Gardiner who was employed.