Tag: IR35

Despite new IR35 regulations and guidance in April, and the Department of Work and Pensions and Home Office hit with fines of £87m and £29m, respectively. HM Courts and Tribunal Service has fallen victim of CEST misuse with a total fine of £12m.

Commenting on the latest Check Employment Status for Tax (CEST) casualty, Dave Chaplin, CEO of IR35 Shield said: “HMRC’s CEST tool is failing fast and now we are hearing of yet one more government department, HM Courts and Tribunal Service, hit with a high tax bill to the tune of £12m because it has relied on CEST to assess its contracting workforce. One of CEST’s major flaws has been its over-reliance on substitution, which any defence expert knows is folly. Over the last few years, many industry experts have pointed out CEST’s failings to HMRC but those messages were ignored and now we are witnessing the fallout and financial damage.

“My advice to anyone who has used CEST is to revisit your determinations and if they rely on a valid right to substitute then seek advice on the correct interpretation of the law. Also, recheck the status with the assumption that the substitution clause is not valid, to make sure you have not also been badly exposed due to the flaw.

“Moreover, it is crucial that once you hire a worker on an “outside IR35” basis that you continue to monitor the status throughout the engagement. Regular checking and gathering contemporaneous evidence are crucial in forming a pre-emptive defence.  Poor assessment decisions left alone, without any evidence to back them up, can prove costly as we are seeing with these recent governmental departments.”

The FCSA, the membership body dedicated to raising standards and promoting supply chain compliance for the temporary labour market, responded saying that it had expressed its concern to HMRC about the validity of the CEST tool. “The current fines perhaps demonstrate that the CEST tool needs re-visiting in terms of a valid SDC determination. In the light of the current outcomes, it would be silly for HMRC to simply press ahead without stopping and reviewing the tool.

“In the interim, marketplace experts, including many FCSA members, have developed alternative tools that can assist the sector in creating more accurate determination tests. So far, there is an ironic pattern emerging here in that one government department is taking money from another and so the government balance remains at zero. The real threat comes when other non-government bodies start to fall victim to huge fines because of using a government promoted test. That will not sit well with a sector that is working hard to support the government to ‘Build Back Better’.”

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HMRC has firmed up off-payroll legislation with new guidance issued in April.

With more employers and recruiters exploring IR35 solutions, HMRC has issued new guidance on Statement of Work to help them and contractors to avoid future liabilities.

“I’m aware of many incidents where Statements of Work are wrongly seen as a magic bullet to disapply off-payroll legislation and there has been a sharp increase in supposed ‘IR35 solutions’ which are simply a change in contractual wording in how someone is engaged,” said Julia Kermode of IWORK, a champion of independent workers and former CEO of the FCSA.

“My advice is simple – be very wary of these models. If a service is genuinely contracted out then a statement of work is perfectly acceptable, however simply amending the contractual wording in isolation does not achieve this and it is likely that you will need to consider the off-payroll working rules. There is no work around or solution to off-payroll, and the sooner everyone realises that the better.”

Clarke Bowles, Director of Strategic Sales at Parasol Group observes that the new guidance from HMRC on SOW has come at an interesting time.

“It would seem to be a reaction to some of the behaviours we’ve seen across the industry since the IR35 reforms in April,” he said. “How you assess IR35 is exactly the same for SOW as it is for any other engagement. Therefore, if something is genuinely outside of IR35 so long as it is accurately and fairly assessed it will be outside for both as it should always reflect the contracts and working practices, so there is an argument that actually getting to the root of the issue and amending contracts and working practices could be a better approach for many and one worth considering.

“Using a Statement of Work for genuinely outsourced services is a sensible way to ensure that expectations and responsibilities of parties are agreed and documented if it reflects the reality of commercial arrangements. However, as a way to circumvent the reforms, it is inappropriate and introduces unnecessary risk.”

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By David McCormack, CEO of HIVE360

Recruitment businesses are wrestling with how to cover the increased costs following the IR35 changes that took effect last month. An outsourced PAYE model is the solution as both recruiters and their workers will be financially better off.

Following a year of COVID-19-related delays, IR35 changes kicked-in last month. To comply, recruitment businesses have three options: set-up an in-house payroll facility, cut workers’ pay, or outsource payroll to a recommended PAYE, compliant specialist.

The cost of IR35

The new off-payroll rules mean there is more tax to pay.  Umbrella companies charge recruiters for administering payroll, at an average £20 per worker per week – so that’s around £1,000 per worker a year, based on an £18,000 salary.

An in-house payroll also carries additional costs – we estimate a recruitment company with 400 workers should plan for an additional £30,000 each year in administration and resource costs.

To cover these and the additional tax, recruitment business must either ‘absorb’ the financial hit, or pass the costs on to workers in the form of a pay cut, which, if using an umbrella model, would have to be at least five percent to cover the additional costs.

If agencies offer workers a fair, comparable PAYE rate, workers are financially better off being paid this way. When you deduct the weekly fee and all costs of employment going through an umbrella company, and see the real ‘take-home pay’ for workers, you have to ask if the vanity of a higher umbrella rate (and we all know it’s not really a higher pay rate) is stopping recruiters moving workers to PAYE, which is the ‘IR35 safe solution’.

The cost-savings of outsourcing PAYE payroll to a compliant provider speak for themselves:

  • > Recruiters outsourcing temporary workers’ PAYE payroll to Hive360 report savings of £100 or more per worker in the first year.
  • > A temp agency with 2,000 PAYE temps could see a return of £200,000 per annum.
  • > An employer with 100 employees could achieve a bottom-line return of over £10,000.

Added benefits on-the-go 

HIVE360 is an expert in recruitment agency PAYE payroll including those governed by the GLAA (Gangmasters and Labour Abuse Authority). We are also specialists in wellbeing and benefits provision – and bring all this together in one powerful and unique solution: Engage.

Recruiters that outsource their PAYE payroll to HIVE360 gain automatic, complimentary access for all pay-rolled workers to this employee digital health and wellbeing app.

The app’s features include a personal doctor, personal support helpline, care support, and gym memberships, thousands of high-street and online lifestyle, dining and insurance discounts, mobile phone savings, online training resources, and GDPR-compliant pay and pension information such as digital payslips and a real-time workplace pension dashboard.

Recruitment businesses using Engage record worker engagement levels of over 80%.

Recruiters’ choice

By bringing recruiters’ candidate and HR systems seamlessly together in one mobile experience, and by working closely with our team, Engage delivers customised, accurate, on time and fully transparent agency worker pay, whilst creating significant cost savings on PAYE Payroll and Pensions Administration, as well as improving internal process efficiencies and reducing overheads.

Dean Nixon, Commercial Director of First Call Contract Services told me: “Operating extensively in the GLAA Sector means our business has a big commitment to the welfare of our workers. Our decision to launch a new engagement platform with HIVE360 during the global pandemic was an easy one. By giving our temporary workers access to a mobile app that provides immediate GP services, mental health counsellors, pay and pensions information, means we’re helping to support and protect them ‘on the go’ and can give them immediate access to vital information.”

Tricia Hay, MD of First Base Employment added: “I’m really passionate about making sure we consistently uphold high standards in what is a highly competitive recruitment market, especially in the way we treat and look after our temporary workers. Partnering with HIVE360 has allowed First Base to really take welfare and benefits to an exemplary level for all of our valued candidates and our own staff.”

Speaking about its partnership with HIVE360, MD of Rocket Software, Danny Steel, said: “We had been looking for a strategic partner in the employee benefits space and after reviewing numerous potential partners, we found HIVE360 innovative, collaborative, progressive and creative. Their mobile-based tech easily integrates with our TempID+ software and Pocket Rocket app, and as GLAA license holders with much experience in this vital sector, we felt HIVE360 was a really good fit for us, and so they became the obvious choice for our preferred strategic partner.”

Specialist employee benefits and outsourced payroll provider, GLAA license holder and Inspiring Workplaces corporate member, HIVE360 is championing a new model of employment administration in the UK market, and redefining employment and pension administration processing.  For more information, visit: www.hive360.com  

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The co-chair of the Loan Charge APPG report on the contracting industry has effectively called for an end to umbrella companies by suggesting the government strike out part of its Finance Bill.

Speaking in parliament the week after the APPG’s How Contracting Should Work document was published, Ruth Cadbury MP launched a scathing attack on the umbrella industry.

“The unintended consequences of IR35, off payroll legislation, has been a proliferation of umbrella companies, some of which have pushed people into disguised remuneration schemes,” she said.

She added that the APPG report had, “exposed significant malpractice, including withholding holiday pay and kickbacks for recommending or passing on contractors, even including providing fitted kitchens and holidays for recruitment agency directors”.

Opportunity for change

While she said that long term an alignment of tax and employment laws was needed, Cadbury suggested the government now had an opportunity to stamp out bad practices by making changes to Clause 21 of the Finance Bill, which deals with workers provided by intermediaries.

“The government could simply strike out Clause 21, which would then ensure workers got the agency rights they should be getting. Agencies can run their own payrolls, they do for their own staff anyway, they do not need umbrella companies and neither do their contractors.

“Or, the government could redraft Clause 21 to seek to stop the exploitation but they must do one or the other.”

She said some schemes were not transparent about tax avoidance during the sales process and had caused “misery” for workers.

“The government and HMRC are well aware schemes are still being mis-sold to people, including mid and low paid public service workers, nurses, doctors in the NHS and other clinical specialists, teachers and social workers. And also many in the private sector, IT, business services and so on.”

Levelling the playing field

However, Dave Chaplin, CEO of contracting authority ContractorCalculator, said he did not think it was likely the government would follow Cadbury’s suggestion. “Why should the honest umbrella companies suffer because of the few that are up to no good,” he asked?

“The alternative option is to update the existing Finance Bill to rule out skulduggery, and make all umbrellas operate on a level playing field. That would be the more sensible way forward, and there are some options that might be possible.

Crawford Temple, CEO of Professional Passport, expressed a similar view. “Closing down a whole sector that provides such crucial support to the entire contingent workforce would be an over-reaction. We agree with Ruth Cadbury and have indeed been making the point to HMRC for many years that limiting the ability of disguised remuneration and non-compliant operators to enter the market is essential.

“However, the proliferation of these arrangements is a direct consequence of ill-thought through legislation with the responsible stakeholders in the sector all aligned on highlighting these problems in their responses to previous consultations that have been ignored.

“I would suggest that a collegiate and joined-up approach is what is needed right now to drive up standards and stamp out the unethical practices that are giving the entire sector a bad name.”

More enforcement needed

Phil Pluck, chief executive of the Freelancer & Contractor Services Association, which gave evidence to the APPG for its report, added that it is not only regulation but also enforcement action that is needed.

“The key suggestion is that regulation should apply to the umbrella sector, which the FCSA has been campaigning for for a number of years. But we would go further and say that this also requires robust and visible policing. HMRC are caught between maximising tax revenue and prosecuting tax avoidance criminals. This conflict means that not enough prosecutions end in convictions and not enough directors see the inside of a prison cell.”

He said IR35 reform made this need all the more pressing. “The IR35 reforms will see an increase in contractor numbers and an increased opportunity for unscrupulous agencies and umbrella firms to further exploit this population.

“The FCSA is already looking at how it can bring in greater compliance standards in order to create a more transparent and fairer playing field for these workers but the government must stop dragging its heels on regulation and the resources to prosecute unlawful elements in this market.”

Clarke Bowles​, Director of Strategic Sales at Parasol Group, backed the call for more enforcement. “Investing time pressing government for a single enforcement body helping to drive proper regulation would be far more effective than making sweeping statements about an entire industry, most of whom uphold very high standards of compliance.”

Overly simplistic

Bowles added that Cadbury’s dismissal of the need for umbrella companies was misguided. “A quote from Ruth during the speech said ‘The legislation as originally drafted would have meant that the agency would have to put the worker on their own payroll where they would have enjoyed the protections of existing agency legislation.’

“This ignores the fact that agency workers employed by a compliant umbrella company already enjoy and benefit from full employment rights. Whilst there is no obligation on the fee payer to offer employment rights, adopting this strategy could create large numbers of zero right employees, creating a much bigger issue.

“Ruth suggests that clause 21 be struck out and recruitment agencies run their own payroll ‘as they do anyway for their own staff.’ This completely ignores the complexity of fee payer responsibilities, deductions and the benefits for temporary workers that come with the continuity of employment, benefits packages, employment rights and protections.

“In addition, not all recruitment businesses are able to run their own payrolls, many simply do not have the resources, infrastructure or expertise to do so.”

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A new survey of more than 2,700 contractors reveals just 14% will accept an inside IR35 decision, raising fears that UK companies could be on the verge of a massive talent exodus.

Overall, 69% of contractors said that if they were deemed inside IR35 they would either leave or charge a higher fee, according to research by specialist insurance broker Kingsbridge in the lead-up to the introduction of new off-payroll rules on Tuesday, April 6.

This potential exodus of contractors from talent pools is further exacerbated by the struggles this group have faced over the past year. According to Kingsbridge’s research, a staggering 70% of contractors have gone without government support so far during the pandemic, suggesting that a significant proportion of the flexible workforce could soon be lost to employers.

Tough job ahead for recruiters
Andy Vessey, Head of Tax at Kingsbridge, said the findings are alarming reading for recruiters trying to attract highly skilled and flexible contractors. “It’s clearly been a difficult year for contractors, with the combined effects of Covid-19 and Brexit already weighing heavily on their shoulders, and IR35 is yet another challenge to contend with. Engagement and communication…will be key to ensuring that this significantly valuable resource doesn’t dwindle after April 6.

“IR35 reforms can seem complicated and troublesome for recruiters who have new responsibilities and liabilities under the rules. However, if the legislation is understood, enacted fairly and communicated effectively, then contractors will be able to keep working in the way that they want to, and end clients can prove that they are employing them legitimately and legally outside IR35.”

The research highlighted that, while 73% of contractors felt prepared or somewhat prepared for IR35, 55% did not believe their recruitment agency was ready.

Third-party sellers ‘a compliance risk’
Crawford Temple, CEO of Professional Passport, a large independent assessor of intermediary compliance, warned recruiters to be wary of third-party sellers and sales lead generation companies, which typically offered introduction incentives of up to £400 each.

“With umbrella charges typically equating to around £20 per week, it is difficult to understand how these large financial incentives can be offered through standard compliant offerings,” he said. “Many of these organisations seek to front their offering with an accredited provider to create a perception of compliance. Once leads are received, and where the individuals are looking for higher returns, they are often introduced to a different offering.

“Many of the ‘high return’ models operate significantly higher charges whilst at the same time returning larger take home pay for workers. Where compliant tax arrangements are used, the take home pay from providers will be broadly the same, with the only difference being where the charge varies, which should only result in a few pence difference to a worker.”

Beware the ‘ghost’ system
Temple also urged recruiters to be alert to ‘ghost’ systems, where providers seemingly operate compliant offerings with many workers engaged by a standard umbrella style arrangement.

“Behind this seemingly compliant offering lies a separate offering that is only offered to workers who express a desire for higher returns,” he said. “These non-compliant offerings typically fail to provide workers with pay slips or other communications relating to the breakdown of pay so that these would have to be requested by the recruitment company directly from the provider. The examples provided do not reflect the reality of the arrangements and are designed to mislead.”

Tell-tale sign of non-compliance
A tell-tale sign for recruiters that something is wrong is a sudden increase in workers operating through a specific provider for no apparent reason.

“Ignorance is no defence, and the supply chain needs to work together to drive up standards and promote the importance of compliance,” Temple said. “The message is clear: work with compliant partners that you trust and be wary of firms that seem to be aggressively cashing in on new upcoming legislative changes.”

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Concerns that recruiters may be taken to court over unlawful deductions of employers’ national insurance contributions (NICs) have created a cloud of confusion ahead of new IR35 rules coming into effect for the private sector on Tuesday April 6.

Amid the news that group litigations are being prepared to seek compensation from employment agencies or umbrella companies that have deducted NICs from contractors’ gross pay since IR35 was introduced in the public sector in 2017, Apsco issued a statement in a bid to address recruiter concerns ahead of new off-payroll working rules being introduced to the private sector next week.

Changing from outside to inside IR35
Tania Bowers, Legal Counsel and Head of Public Policy for APSCo, said it was important that companies clearly differentiated between “outside IR35” rates and PAYE/umbrella rates.

“When a contractor changes from outside to inside IR35, our advice to members has always been that the cleanest approach is to terminate the original contract with the PSC and issue a new one on new terms,” she explained.

“This is generally required as most workers – as we saw from the 2017 reforms and are already seeing now – provide their services through an employment solution at an umbrella company rather than continue to work inside IR35 under their PSC. However the contractor works, inside IR35 or umbrella, if clients are unwilling to increase their rates then our members are left in a position where they need to offer the contractor a new contract, but on different fee rates, as employers’ NICs and apprenticeship levy contributions – where applicable – must be paid. The Key Information Document is intended to address the issue of transparency over pay, but currently it is not having the impact hoped for.”

 

“The recruitment company must pay the umbrella a sum which covers the employment costs, including holiday pay, apprenticeship levy contributions, NICs and worker gross pay. This means that the worker’s gross pay will be less than the amount paid by the recruitment agency to the umbrella. As an HMRC spokesperson explained recently, ‘it is legitimate for umbrella companies to deduct employers’ national insurance contributions from the payment they receive from the recruitment agency’.”

 

Financial burden to recruiters

David McCormack, CEO of employee benefits and outsourced payroll provider HIVE360, explained the financial burden for recruiters.

 

“Recruitment businesses running an in-house payroll of 400 workers will add over £30,000 each year in administration and resource costs. Those using an umbrella company to pay workers are forcing workers to carry the burden of processing costs on average £20 per worker per week – that’s around £1,000 a year based on an average £18,000 salary.

 

“Recruitment companies have three options – either return to in-house payroll, cut workers’ pay, or outsource payroll to a recommended PAYE-compliant specialist. If agencies offer workers a fair comparable PAYE rate, the workers are better off financially being paid via a PAYE model – to work it out, deduct the weekly fee and all costs of employment going through an umbrella company and see the real ‘take-home pay’ for workers.

 

“Obviously, if there are hidden tax schemes behind the umbrella (mini umbrella, micro umbrella or elective deduction models sometimes called Hybrid), then it’s likely that agencies won’t offer a directly comparable PAYE rate.”

New HMRC off-payroll report ‘too little, too late’
APSCo is critical of the timing of the release of a new report from HMRC and IFF Research into the impact of off-payroll reforms on employment companies, citing the research as being “too little, too late”.

“The research revealed a number of insights that were to be expected, with some recruitment firms already noting a drop in contractor numbers and client demand for PSC contractors,” Bowers said. “It is reassuring to see, though, that most staffing companies have been preparing ahead of the deadline. It is, however, disappointing that this research has come to light so late in the day…leaving little time for action from HMRC.”

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