Tag: Umbrella Companies

Industry calls on HMRC to better enforce existing legislation to weed out non-compliant firms.

Frances O’Gradygeneral secretary of the Trades Union Congress (TUC), has called for a ban on the use of umbrella companies, saying: “Employers shouldn’t be able to wash their hands of any responsibility by farming out their duties to a long line of intermediaries … It’s time for ministers to ban umbrella companies, without delay.”

The TUC, which represents 5.5 million workers, estimates that half of all agency workers are employed through umbrella companies based on research it commissioned from the Low Incomes Tax Reform Group. It predicts a rise in the use of umbrellas to source agency workers fill post-pandemic talent shortages.

Clarke Bowles, Director of Strategic Sales at Parasol Group, commented: “After what I thought was a well written and balanced report from The Low Incomes Tax Reform Group (LITRG), it’s disappointing to see TUC still hold a view which in my opinion does nobody any good. Compliant and ethical providers, those who supported throughout furlough, those who ensure holiday pay is always paid are tarnished with the same brush as tax avoidance promoters and even fraudulent models.

“There is a place in the supply chain for compliant and ethical providers and many contractors choose to use an umbrella company for the benefits they receive, but I believe it is about contractor choice, regulation and enforcement.”

This view was echoed by Crawford Temple, CEO of Professional Passport, who said: “It is surprising to hear this call from Frances O’Grady as the Loan Charge APPG report commissioned by the TUC did not call for a ban. Whilst there is a lot of regulation already in place to address malpractice in the industry, a blanket ban is not the way forward and the call by the TUC serves to demonstrates a lack of understanding on how compliant umbrellas work to support workers.

“The Government needs to address the underlying issues and challenges that our industry faces as a matter of urgency, namely non-compliance, transparency and enforcement. Non-compliance is fuelled by the complexity of legislation currently in place. The lack of visible enforcement, the lengthy delays in taking any action, and targeting the workers for recovery all serve the interests of those seeking to circumvent, or disregard, the rules. HMRC holds all the data it needs to stamp out bad practice and it is simply not taking the proactive approach. This is where the real problem lies.”

Dave Chaplin, CEO of contracting authority ContractorCalculator adds: “Not surprisingly, the fraudsters aren’t scared by unenforced regulation – which is why some are happy to call for more of it – knowing that they can just carry on with limited (or no) oversight. Payroll transparency and monthly independent party auditing is where the market needs to head, and some are already leading the way on that.”

Phil Pluck, CEO of the FCSA, described the TUC’s call for a ban as ‘a knee jerk reaction to a sector that has come about through necessity’ adding that it is misguided in suggesting recruitment agencies be the provider of contingent labour.

“A contractor may move from contract to contract on almost a weekly basis with day rates for their work varying on each contract,” he explained. “Recruitment firms realised long ago that to have for example one thousand contractors on their books moving through thousands of variable rate contracts whilst actually being their employer was logistically impossible. The same contractors will then typically move from one umbrella to another around three times per annum.

“To employ a contingent worker through large numbers of contracts whilst also employing them whilst they are not actually working on a contract requires detailed knowledge in taxation, accountancy and employment law as well as a detailed understanding of highly complex software management systems. Recruitment companies are simply not equipped to properly manage and employ such a varying workforce. Hence the existence of umbrella firms. To simply suggest that umbrella firms be banned is not workable and ultimately will disadvantage the freelance worker.”

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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.”

Photo courtesy of wikipedia.org

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