Off-payroll: PSC and employment rights
Directors of PSCs may be able to claim employment rights if their PSC is ruled to be a deemed employee under the off-payroll (IR35) rules from 6 April 2020. Rebecca Seeley Harris uses employment case law to show how this can happen.
Barclays Bank and Lloyds Bank have already declared that they will no longer be using limited company contractors or personal service companies (PSCs) other than through payroll having declared them all inside IR35.
In assessing the PSCs, the banks are effectively saying they do not pass the employment status test as self-employed. The corollary being that the PSC’s employment status is employed, rather than self-employed. The difficulty being that the PSC does not get any employment rights as they are only deemed employees for tax purposes. What exactly is their position under employment law?
Not an individual
The initial assumption is probably that the PSC is not entitled to employment rights because it is a limited company and, therefore, a separate legal entity. But could the PSC bring a claim to the employment tribunal?
If the PSC brought a claim to the tribunal, the tribunal would have to decide on a preliminary issue whether they had jurisdiction to hear the claim in the first place. The jurisdictional issue would be whether the claimant was either an employee, a worker or self-employed. This is exactly what happened in a case in 1994 where a disgruntled individual, who was providing their services through a limited company or PSC, brought a claim for unfair dismissal.
Case of the journeyman
In Catamaran Cruises Ltd v. Williams  IRLR 386 EAT, Mr Williams was providing his services as a journeyman through a limited company Unicorn Enterprises Ltd to Catamaran Cruises. In 1988, the Inland Revenue (as it was then) told Catamaran Cruises that all their journeymen were employees for tax purposes. Catamaran Cruises then gave Williams the option of being paid under PAYE or to provide his services through a limited company.
After consulting his accountant, Williams opted to provide his services through a limited company. Sometime afterwards Williams had a disagreement with Catamaran Cruises and had his contract terminated. He then put in a claim for unfair dismissal.
In order to claim unfair dismissal, Williams had to prove that he was an employee, not just a worker. He was asking the tribunal to disregard the imposition of his limited company and hold that he was in reality an employee. Catamaran Cruises argued that the formation of a limited company had the effect of creating a separate legal entity which operated between Williams and Catamaran and the existence of the which meant that Williams could not be regarded as an employee.
The Employment Appeal Tribunal (EAT) stated: “There is no rule of law that the importation of a limited company into a relationship such as existed in this case prevents the continuation of a contract of employment. If the true relationship is that of employer and employee, it cannot be changed by putting a different label upon it.”
The EAT continued: “In our view, it is a question of fact in every case whether or not the contract in question is one of service or a contract for services. We accept that the formation of a company may be strong evidence of a change of status but that the fact has to be evaluated in the context of all the other facts as found.”
In two more recent cases, individuals supplying their services through a limited company have been found to be either an employee or a worker. These cases obviously turn on their facts, but they are persuasive.
In 2018, in Sprint Electric Limited v Buyer’s Dream Limited  EWHC 1924 (Ch), the High Court held that the director of Buyer’s Dream Limited who was engaged via his PSC was an employee of Sprint Electric Ltd. The case concerned who owned the intellectual property in some source code but, the judge determined that the PSC was a mere “tool or device” and the “true relationship” was one of employment, based on facts such as personal service.
In the most recent case of Community Based Care Health Ltd v Dr Reshma Narayan  UKEAT 0162/18, Dr Narayan was held by the EAT to be a ‘worker’ for employment rights purposes despite providing her services through a limited company.
It had been found that the doctor had been integrated into the operations of Community Based Care Health Ltd (CBCH Ltd) and that CBCH Ltd was not the doctor’s client. As a worker, the doctor is entitled to all the day-one rights of an employee but, the main difference is that the worker is not entitled to unfair dismissal or redundancy. The main cost to the employer of a worker is holiday pay, especially if it is backdated.
There are obviously judgments to counter this argument that a PSC may be able to get employment rights but, these cases are persuasive. However, what has a contractor got to lose, now that taking a case to the employment tribunal is free?
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Rebecca is a leading expert in ‘employment status’ and IR35 and the law involving independent contractors and the self-employed for the purposes of tax and employment law. Rebecca has run her own consultancy for the past 20 years covering all employment status issues such as off-payroll in the private and public sector, otherwise known as IR35...