Off-payroll: Challenges for construction

The construction industry has some particular challenges in implementing the off-payroll working rules from 6 April 2021, as Tania Rowe explains. 

5th Jan 2021
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Off-payroll rules will add complexity for construction companies from 1 April 2021
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The construction industry has been applauded by the government for continuing to work through the Covid-19 crisis. But this has meant making enormous changes to the way we work, including introducing agile working practices, as well as having employees on furlough and working when our work partners were not.

Now we need to up-end our systems again to cope with off-payroll working.

Long time coming

The off-payroll working rules (a variant of IR35) were originally introduced in the public sector in April 2017. Since that time the rules have been tightened and changed. The roll-out of these rules to the private sector, although due to be implemented in April 2020, was delayed until 6 April 2021.

The off-payroll working rules will apply to all large and medium sized engaging companies in the private sector, not just in the construction industry. Small engagers are not affected (see off-payroll working rules guidance).

Where the off-payroll rules bite they recharacterise payments made to an intermediary in respect of the services provided by an individual as employment income, where those services could be shown to be akin to those provided by an employee.

The key difference with the current implementation of IR35, is that it will be the responsibility of the “end user” to identify which services are caught by the off-payroll rules, and ensure that payment for those services is taxed under PAYE.

Construction chains

The complexity for a construction business is that it may use many tiers of sub-contractors in order to complete a project.

The end user will be responsible for:

  • determining the employment status of each individual on a project, be it self-employed, employed or worker (a new definition); and
  • ensure that if the supplier is a worker that they are paid via PAYE by the “fee-payer” in the chain, which may be the agency that provided that worker.

Where the worker doesn’t agree

A further complexity is that there are a lot of specialist self-employed workers in the construction industry that may not agree with the end user’s assessment of their employment status. Remember this assessment is made for each project a person works on, not for the entire working relationship between a contractor and sub-contractor.   

The end user, as well as having an obligation to share their assessment of employment status with the supplier, also has a duty to deal with appeals to that assessment within 45 days of the objection being raised. However, the supplier (the sub-contractor) can appeal at any time, so may have been working for contractor for some time before raising an appeal. 

Systems and processes need to be created to document the employment status determination process and the result. Those systems also need to allow for appeals to be made, by including details of the appeals process with the determination, and have someone available to respond promptly to any appeals made.

Payment mechanism

The final complexity comes with how to pay a supplier company, which is supplying the services of an individual (now identified as a “worker”), while accounting for PAYE. 

We have separate systems for supplier payments (principally designed around payment terms, VAT and CIS checking and so on), and our payroll, yet those two systems will now need to work together.

What’s more the payment made to the individual within the supplier company is a reverse calculation as the payment is after tax, NIC and any business deductions. This payment may have to be made without the knowledge of that individual’s PAYE coding and national insurance number, if the supplier objects to providing those details.

There are also considerations to be made about the payment dates, as the contractual invoicing terms are unlikely to be the same as the payroll run dates, unless some thought it put into this beforehand.

Replies (2)

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By abelljms
05th Jan 2021 15:13

it's bizarre how doggedly HMRCy is flogging this, via complex rules, instead of the simple solution. Yet again policy determined by civil servants who scarcely know what a building site looks like, let alone how its mechanics work. They think that Wimpey build offices - doh.

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By Kate Upcraft
07th Jan 2021 09:56

you don't need the worker to give you either a tax code or their NINO. They complete a starter checklist (like an actual employee) and in the absence of that being completed they are allocated tax code 0T/1 (as any actual employee). The engager decides the NI label letter as usual and a NINO is not required at all to set up a payroll record just name, forename, DOB and 2 lines of the address - these are the key details that need obtaining.

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