Staying in the same public sector contract after April 2017

[RonBW]

WE may be missing a trick here. consider...

The client says you are IR35 fodder, and (their agency) taxes you accordingly. You however are sure you are not, from your knowledge of the rules and in defiance of the client's view and the tools assessment (which is almost certainly wrong in law anyway). So you take the client to the EAT and claim employment rights, since the client is saying you are under their full direction and control and providing a personal service, ergo you have all the hallmarks of an employee so why not any of the rights. The client don't want you to win that one, so they are now forced to prove that you are outside IR35.

Would that work...?

It's a hope that might work - the clients in the majority don't want to give rights (some areas of public sector will, I suspect, not care - for example the provision of social workers) so if we can convince them that it's in their interest to show that we're not workers or employees then that has to be a good thing for those that want to be treated as a genuine freelancer.

That would still be able to protect the vulnerable exploited worker like CitySprint, Hermes, Deliveroo et al while allowing us to work how we want to work.

[eek]

Win/win outcome then; either the HMRC gods get their sacrifice or if permietractor numpty wins, we're all home free.

If hmrc are picking the battle you can be sure they will pick a winnable case.

[northernladuk]

If hmrc are picking the battle you can be sure they will pick a winnable case.

They've got PC as their joker....




Which is a coincidence...

[LondonManc]

If hmrc are picking the battle you can be sure they will pick a winnable case.

Which will mean a non-IPSE, head-in-sand bum-on-seater type, rather than anyone acting as a business, i.e. the sort of person who *should* be inside IR35 anyway.

[Andy Hallett]

A series of employment claims would:

a) be destined to fail
b) play right into HMRC's hands

[bobspud]

A series of employment claims would:

a) be destined to fail
b) play right into HMRC's hands

Despite all the empire building that is going on, the case law is still based on this :

https://en.wikipedia.org/wiki/Ready_...onal_Insurance

Until now HMRC have been free to fight this based on them getting the tax while the contractor gets screwed but the UBER and City Sprint tribunals have changed that. I dont think it will take much to set the judicial precedent that wipes away the idea that its ok to use employment status to grab tax without forming a contract for employment.

and that is where the poor agency gets the rough end of the stick.

[pscont]

From the tech note

Janice is a Project Manager, contracted by a building company to work on the construction of a new wing at an NHS hospital – off-payroll working rules do not apply.

Context

Janice is a project manager who provides her services through her own company, Janice PPM Ltd. The company has been contracted by Hospital Construction Ltd to project manage the building of a new wing at a hospital, managed by an NHS Trust.

The NHS Trust has agreed to pay Hospital Construction Ltd an amount of £500m in payment for the construction project. Hospital Construction Ltd is expected to pay their own staff and contractor costs for the project.

Do off-payroll rules apply?

Janice’s role will be to work closely with the NHS Trust to understand and deliver the project requirements and with the construction company and other partners to make that happen. She meets with the Trust managers as part of the recruitment process, but the recruitment decision is for Hospital Construction Ltd as they are the vacancy holders.

The NHS Trust, whilst having an interest in the work of Janice is not responsible for paying Janice’s PSC. They will not be responsible for determining whether or not off-payroll rules should be applied.

So does it mean that if the PSB pays to an agency in advance (even does it have to be in advance) and your contract is with the agency only and doesn't mention the PSB the rules doesn't apply?

[malvolio]

A series of employment claims would:

a) be destined to fail
b) play right into HMRC's hands

I'm not so sure. The whole basis of this current mess is that a worker is unequivocally under the direction and control of the "employer" and is being taxed on their whole income. These are the same tests as are long established for proving employment (and were the ones used by the Uber judgement for one, albeit for different reasons). So the EAT could be presented with a worker saying their engagement demonstrates all the aspects of employment without there being the concomitant benefits and securities of employment.

Of course, there is a distinction between "worker" and "employee" which would need to be overcome so this would be a case as complex and potentially as far reaching as Arctic.

But if you don't ask, you don't get. At the very least, such a case would shine a big spotlight on what HMG are doing to a vitally necessary resource.

[teapot418]

From the tech note




So does it mean that if the PSB pays to an agency in advance (even does it have to be in advance) and your contract is with the agency only and doesn't mention the PSB the rules doesn't apply?

I don't think you can cherry pick bits of the scenario. You may as well say that if your name is Janice, the rules don't apply.

[pscont]

I don't think you can cherry pick bits of the scenario. You may as well say that if your name is Janice, the rules don't apply.

Sure.
What cherry picking though. It is a very clear scenario. It seems it boils down to the flow of money and (may be) the sequence of money changing hands.
1. PSB pays agency, agency pays you = you are in
2. agency pays you and collect money from PSB before hand/later = you are out.

Am I missing something?