Changes to off-payroll working in the private sector – IR35

The Government confirmed that the off-payroll working rules (IR35) will be reformed from 6 April 2020. Interim executives and clients hiring their services should prepare now.

HMRC has issued an Employment Status Manual for end-user companies and interim executives.

HMRC’s Check Employment Status for Tax tool (CEST) should be used to derive an initial Status Determination. This is a report produced by CEST to help find out if an interim executive on a specific engagement, should be classed as employed or self-employed for tax purposes.

The Government’s CEST tool has a key role to play in determining employment status. It does have its limitations and end-user companies of interim executive services should always build up a full picture. The report provided by the CEST tool is accepted by HMRC as an Employment Status Determination.

Whilst most genuine interim executives will be classed as outside IR35, CEST will require months and perhaps years of case law to refine it and ensure it is fit for purpose. HMRC currently does not have a good record of winning cases it brings to court, suggesting that it should not be 100% relied upon to accurately reflect the employment status. It certainly should not be used to determine the employment status of the entire self-employed population of the United Kingdom. An IT contractor is very different to an interim chief information officer.

HMRC doesn’t allow for the range of reasons a business needs to hire interim executives – often within days. These include:

• Managing leadership transition – when a leader leaves a business suddenly or when a current leader is not suited to manage a business from one state to another – in all cases a credible executive is needed at short notice.
• Managing specific business change programmes
• Managing a crisis or turnaround
• All types of planned and unplanned business change

We recommend that end-user companies and interim executives use the CEST tool but also build an all-round case. Make sure there is a specific, assignment-limited situation to be managed. Make sure that there isn’t an existing employed individual suitable and available to manage this situation instead.

Surrey Business School and Holdsway published a white paper in September 2019 on the Interim Assignment Cycle, recommending a clear framework for interim assignments. Focusing on the specific assignment will help focus the minds on hiring an interim executive outside IR35.

Interim executives should inform themselves about IR35 from the Association of Independent Professionals and the Self-Employed (IPSE). They offer informative updates on IR35 and on being self-employed, together with other services including contract compliance. We can send interim executives a link for reduced membership fees.

Useful Links and Contacts

End-user clients seeking employment tax advice, including IR35, should contact our recommended partner RSM UK.

About RSM

A leading provider of audit, tax and consulting services to middle market leaders, globally. They have  around 3,800 partners and staff in the UK and access to more than 43,000 people in 120 countries.

Please contact Lee Knight, Employer Solutions Director at RSM UK: Tel: +44 (0)203 201 8508

For RSM IR35 Updates and Insights:

https://www.rsmuk.com/ideas-and-insights/ir35

For specialist legal advice for interim executives and those hiring them, we also recommend contacting Brookson Legal.

Please contact Michael Howard by email michael.howard@brookson.co.uk or simply call him on 07714 901 662

About Brookson Legal

• Founding members of FCSA (the UK’s leading professional membership body dedicated to raising standards and promoting supply chain compliance for the temporary labour market).
• Represented on HMRC IR35 forum and sit on HMRC’s IR35 Panel
• IR35 Employment Status Tests brought to market in 2000
• Currently helping over 15,000 personal service companies (PSCs)
• 19 years of providing IR35 advice, with over 100,00 reviews carried out
• Considerable experience from Public Sector changes

Nick Diprose is available to provide Holdsway’s view and professional opinion on IR35. Please email him on nick.diprose@holdsway.co.uk or call him on +44 (0)203 053 4438.