The ‘IR35’ rules, introduced in 2017 were designed to prevent the avoidance of tax and national insurance contributions (NICs) through the use of personal service companies (PSCs) and partnerships. The rules have been in situ since April 2017 for PSCs who provide their services to the public sector.
From 6 April 2021, IR35 was expanded to include individuals who provide their personal services via a personal service company (‘PSC’) to medium or large private businesses. An intermediary may be another individual, a partnership, an unincorporated association or a company. The most common structure is a worker providing their services via their own company (PSC) which is the term used in this article to summarise the rules which will apply to all intermediaries.
Mitchell Charlesworth and DTM Legal delivered a seminar addressing some key issues that IR35 brings from both a tax and employment law perspective, which have been summarised in this paper.
Some of the issues addressed include:
- What does employment law have to do with self-employed consultants?
- What is the employment law status of a consultant from an employment law perspective?
- The benefits of hiring an independent contractor
- Status determination
- Using Consultancy arrangements
- What tests do HMRC and employment tribunals use?
- What constitutes an unfettered right of substitution?
- Mutuality of Obligation
- What is a ‘worker’ as defined by employment law?
- What are the implications from an employment law perspective when engaging a self-employed individual, who subsequently claims to be an employee?
- As the Hirer, how can we minimise our risk should this happen?
- In HMRC’s view, who decides the employment status – the hirer or contractor?
- How does HMRC interpret mutuality of obligation?
- How do HMRC interpret ‘control’ in the context of employment status rules?
- HMRC ‘CEST’ Tool
- In what circumstance does a sub-contractor make their own status determination?
- What would the implication for the sub-contractor or worker if found to be within IR35?
- How successful have HMRC been in since implementing the changes?
- How does IR35 affect situations when hiring a locum?
For the full report and points to consider please click 2022 IR35 Whitepaper DTM Legal
For further details on IR35 please contact Tom Evans or email her on tom.evans@dtmlegal.com
