Employment Status & IR35 expert Re Legal Consulting Ltd
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Be prepared for new IR35 rules

15th Mar 2019
Employment Status & IR35 expert Re Legal Consulting Ltd
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Rebecca Seeley Harris drills into the proposals for off-payroll working (IR35) rules to apply in both the private and public sector from 6 April 2020 and provides tips on how to prepare.

The latest consultation on the off-payroll working rules offers wide-ranging insight into what is to come and also provides some clarification on the existing public sector rules. The consultation refers to the customer or engager of the worker as the “client” throughout, and this is the term that is used in this article.

The April 2020 reform will use the off-payroll working rules in the public sector as a starting point. The client will be required to make a determination of a worker’s employment status and communicate that determination. If the determination of employment status is “deemed employee”, the fee-payer will need to make deductions for income tax and NICs, and pay any employer NICs.

The small company exception

The reforms will only apply where the client is a medium or large business, or a public body, which means there is an exception for clients who are small businesses. The government has chosen to use the definition of 'small company' in the Companies Act 2006, mainly because businesses and accountancy professionals should already be familiar with this definition and to what extent it applies to them.

The Companies Act definition doesn’t include non-corporate entities so, the government is proposing two options:

a)           to apply the reform to unincorporated entities with 50 or more employees and to entities with a turnover exceeding £10.2m.

b)           to apply the reform only to unincorporated entities that have both 50 or more employees and a turnover in excess of £10.2m.

When an organisation becomes or ceases to be “small” in an accounting period, the change relating to the off-payroll rules will apply from the start of the tax year following the end of that accounting period. This is the case regardless of whether the organisation is incorporated or unincorporated.

Practical effect

From 6 April 2020, any client organisation which falls within the rules will be liable for any income tax and Class 1 employee NICs due on deemed payments of employment income until it has fulfilled its obligations. These organisations will also be liable for employer NICs due on those same payments.

It is not clear how an off-payroll worker would know whether the engager should be applying the rules or not or whether, as in the case of the small company exception, the off-payroll worker themselves should be making the determination.

Information sharing

The proposed reforms are designed to ensure the determination of employment status, and the reason for that determination, are cascaded to all parties within the labour supply chain. The consultation document doesn’t comment on whether the client is required to make the determination themselves, or whether the client could outsource the employment status decision and the whole process could be handled by an external team.

For off-payroll workers, the client will be required to provide the determination of employment status and, if requested, the reasoning for the determination, to the worker directly. The legislation will be changed to provide clarity that the client must provide both the contracting party and the off-payroll worker with the determination of status for each engagement.

Under the current public sector rules, the fee-payer is not entitled to see the determination of status, but the government intends to legislate to require all recipients of a determination to pass that information on to the next party in the contractual chain at, or before, they make the first payment.

Long chains

A ‘short circuit’ solution will be available where labour supply chains are long and complex. In this version, the fee-payer would receive the determination of status directly from the client. This would require the client to know who the fee-payer is. As a result of the complexity, the government is seeking views on how the client may be in a position to identify the fee-payer and provide the determination to the party they contract with, the off-payroll worker and the fee-payer directly.

What is clear is that all parties in the labour supply chain will need robust systems to ensure that they can track that the determination of status has been cascaded and received by the next party in the chain. Otherwise, they risk having the liability for tax transferred to them.

Tax liability

In the event that HMRC does not receive the tax due, the government is proposing that the liability should initially rest with the party that has failed to fulfil its obligations. If, however, HMRC was unable to collect the outstanding liability from the defaulting party if, for example, it ceased to exist, the liability should transfer back to the first party or agency in the chain. If HMRC could not collect from them, it would then default back to the client.

The government believes that as the agency is the first supplier of labour to the client, it should be responsible for the behaviour of the chain. The government also believes that the agency has a number of options open to it such as getting an indemnity against non-compliant fee-payers, taking on the fee-payer responsibility themselves or choosing to only work with reputable firms.

Challenging status

Currently, there is no mechanism for challenging a status determination other than the off-payroll worker using the end-of-year processes for overpayment of tax. In addition to the off-payroll worker being entitled to receive the status determination and the reasoning for the determination from the client, the government understands that the off-payroll worker or the fee-payer may disagree with a client’s determination. This might be either because it is believed that the full circumstances have not been considered, or that the client has not taken reasonable care in making the determination.

There are two steps proposed for resolving any status disagreements:

  1. To have the right to seek the status determination directly from the client.
  2. To allow for the status determination to be challenged.

The government plans to introduce a client-led status disagreement process where the client will develop and implement a process to resolve disagreements based on a set of requirements laid out in legislation. This client-led process should also mean fewer off-payroll workers using the end of year processes to reclaim tax, and it is hoped that it will provide a resolution in real time.

No employment rights or benefits

As applies in the public sector, statutory payments and other employment rights will not be affected by the proposed reforms to off-payroll working rules from April 2020. This means that the deemed employment relationship for tax purposes will not result in employment rights or statutory payments obligations for the deemed employer or for the fee-payer.

Be prepared

Organisations affected by the reforms to off-payroll working should take the following actions now to prepare:

  1. Identify and review their current engagements with intermediaries, including PSCs and agencies that supply labour to them.
  2. Review current arrangements for the use of contingent labour, particularly within the organisation functions that are more likely to engage off-payroll workers.
  3. Put in place comprehensive, joined-up processes (assess roles from a procurement, HR, tax and line management perspective) to get consistent decisions about the employment status of the people they engage.
  4. Review internal systems, such as payroll software, process maps, HR and on-boarding policies to see if they need to make any changes.

Replies (10)

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By Matrix
16th Mar 2019 09:32

I didn’t follow some of the terminology regarding who is the client, fee payer etc. especially when you talk about the tax liability.

Could the tax liability ever comeback to the PSC/worker?

Thanks (0)
Replying to Matrix:
16th Mar 2019 11:28

Client = Bank, insurance company, employer, end user, etc.

Fee payer = Recruitment agency paying the PSC (if no recruitment agencies involved then the client would be the fee payer)

No. The tax liability is the problem of the fee payer (or the client if there is no fee payer or the fee payer liquidates).

Thanks (4)
Replying to Matrix:
Rebecca Seeley Harris
By Rebecca Seeley Harris
18th Mar 2019 11:17

The fee-payer is the person in the chain immediately above the lowest and is responsible for making the deductions for tax. The tax liability, however, can transfer within the chain up to the agency or the client depending on certain circumstances but, it will not default back to the PSC.

Thanks (2)
18th Mar 2019 10:47

What will happen if the client has no UK presence? I'm guessing the worker's company will continue to operate IR35 as it does already (analagous to a UK employee operating their own PAYE scheme if their employer has no UK base).

Thanks (0)
Replying to PMHHPH:
Rebecca Seeley Harris
By Rebecca Seeley Harris
18th Mar 2019 11:11

Interesting that you ask that because the consultation doesn't cover it. If there is no UK presence at all yes, I would assume the assessment would remain with the PSC.

Thanks (3)
By dmmarler
18th Mar 2019 12:05

This is a complete nonsense. All the Government needs to do is simplify everything and incorporate NI into general taxation, then there would be a level playing field as to who gets what. Employers' NI is a ridiculous tax on employment. Simplification is what business needs, not additional administration.

Thanks (5)
Dave Chaplin
By Dave Chaplin
18th Mar 2019 12:57

The whole chain idea seems overly complex, and for what reason?

Surely if the client makes the determination it would be easier if they made the tax payments, and just passed the net figure down the chain, with some sort of note that taxes had been deducted.

Not only would that considerably reduce the administrative burden, but it would also close the door on the tax avoidance schemes queuing up and licking their lips ready for April 2020.

Failing to deduct the tax at source is asking for trouble, and another Loan Charge fiasco in 10 years times. HMRC have already demonstrated that they cannot close down schemes quick enough because they lost £3.2bn due to IR35 and loan schemes. I'd expect it to be 10 times worse when these new changes come in.

Thanks (0)
By schocca
19th Mar 2019 12:18

No employment rights or benefits? - Hmm, I sense that this WILL be attacked.

If you are deemed "on payroll" + existing long contract, why not chase for lost holidays and pension? You have nothing to lose...

HMRC have already paid out prior to at least one tribunal in the last 12 months for one of their "on payroll" contractors in this exact same scenario.

Thanks (2)
By Andy_C
20th Mar 2019 13:47

Thanks for that useful summary Rebecca.

So many problems with this proposal it's hard to know where to start.

Client-led status disagreement process - so client says 'we think IR35 applies'; contractor says 'I don't think it does'; client says 'we've decided it does - disagreement process concluded'.

No employment rights or benefits - Employment tribunals are sympathetic to individuals claiming worker status. Making a claim for holiday pay costs nothing. Individuals will be motivated to make a claim because they disagree with the IR35 status determination and the client-led disagreement process ... well, see above.

Small company exemption - we (IPSE) actually support this (in fact we support an all company exemption), but it's going to be difficult for contractors and agencies to know whether the client is a small company.

Shifting the tax liability - it troubles me that one of the entities in the chain could suddenly become liable because another entity has phoenixed.

Information sharing through the chain / shortcuts etc - this all seems like a massive ball-ache. Maybe it's just me but why is a Tory government imposing this on business to protect a few quid of revenue. We need to move away from IR35 which everyone hates and no one understands - there must be a better way.

Also, I agree with other comments on here that this will create more non-compliance in other areas e.g. loan charge, MSCs, lots of 'small companies' springing up and supplying contracted out labour etc

Thanks (0)
By Psychic Sue
25th Mar 2019 14:00

It is becoming increasingly obvious that eventually everyone will be employed right down to the self employed 1 person type of company. Most of my clients are exactly this just 1 man band being self employed and not interested at all in any type of apps, digital stuff or whatever, wants to continue to collect their receipts in a shoebox and give to you at end of year once they have tidied up their vans to find stray receipts. I am struggling to get my clients to understand MTD they just dont want to know.

Thanks (0)