No, if you are a small business hiring locums - see the definition below. Please note that this article is not intended as tax or legal advice to be relied on - simply our thoughts.
IR35, for those not in the industry, is a tax rule related to 'off-payroll working' and is all about levelling up tax contributions so that self-employed workers in theory pay the same as employed workers. It is therefore relevant to locums working in law firms and in house legal departments.
A change is coming in from April 2021 - from the 6th April the clients/fee payers will be responsible for managing IR35.
Firms will be required to state whether a role is 'outside of IR35', which will mean that the assignment in their opinion falls into the definition of self-employed work and will be paid gross/in full, or 'inside IR35', which means that it is caught by the legislation and hence net of tax and national insurance.
If a role is 'inside IR35' then it means that the hirer has decided that the worker is not truly self-employed and therefore will have to have NI and PAYE tax deducted from any payments made.
The rule has been applied to the public sector for some time and has caused a few nightmares for contractors, pushed up prices and made it harder to find temporary workers willing to shoulder the extra tax burdens that are passed onto them as a result of the legislation. This is particularly the case where hirers have applied IR35 rules on a blanket basis, mainly to avoid any future issues with HMRC and pass the burden of any unpaid tax onto the introducing agency or the contractor.
However... the main point if anyone talks about IR35 (and we are hearing the term used a lot by some locums!) is that it does not apply to smaller sized companies and hence does not become an issue.
A company is classed as a small company if it meets two of the following three conditions:
An annual turnover of less than £10.2 million, a balance sheet total of less than £5.1 million and fewer than 50 employees.
This applies to most law firms in most sectors and hence the IR35 rules will not usually apply. In these cases the contractor remains responsible for determining their own tax position.
Blanket Assessments
We have come across local authorities and larger companies who will simply state that all their assignments are going to be inside IR35, regardless of actual status of the contractors in question. This has caused issues. The REC (the recruitment industry trade body) has produced the following list of reasons why this is a very bad idea. I am not sure some of them are particularly good arguments, but here it is..
The regulations require you to assess contractors on a case-by-case basis. So, if you’re assessing everyone the same without looking at people as individuals and how they provide their service, that’s not right.
Contractor relations affected. Contractors are rightly concerned about their tax liabilities if you’re just making a blanket decision without considering what they actually do, or have done in the past. For example, contractors who have worked without supervision and have autonomy being classified as same as those who have worked under the direct supervision of the client. It would be understandable for contractors to feel undervalued and at risk.
Future litigation. Contractors will be able to take clients and agencies to court to claim back costs of wrongly working inside IR35. So not looking at contractors individually could have a big financial consequence later on.
Complex supply chain. If you’re forcing your contractors to go PAYE, they may go through different routes to achieve that – direct employment or using a so-called umbrella company or even a sole trader. That will make your supply chain more complex and compliance more difficult to establish.
Additional benefits. There are regulatory changes that come with moving people to PAYE as they will have more legal entitlements. For example, you’ll need to think through the Agency Workers Regulations and treating staff equally with your own employees on pay, hours and holidays.
The CEO of the REC finished his article with the following quote:
"There’s a moral to this story. Just because the government hasn’t thought through IR35 properly doesn’t mean you should follow their example."
Here's hoping that the legislation never applies to smaller businesses!
Links:
https://www.gov.uk/guidance/private-sector-off-payroll-working-for-clients
https://www.rec.uk.com/recruiters/legal/ir35
https://www.paystream.co.uk/helphub/ir35/articles/ir35-mythbuster-3-the-small-company-exemption/
Jonathan Fagan is Managing Director of Ten-Percent Legal Recruitment and a non-practising Solicitor. Ten-Percent Legal Recruitment provides online Legal Recruitment for Solicitors, Legal Executives, Licensed Conveyancers, Legal Cashiers, Fee Earners, Support Staff, Managers and Paralegals. Visit our Website to search our Vacancy Database.
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