Results of the public sector consultation is up

[gables]

To be fair the legislation hasn't changed. The person deciding whether to apply it has.

And you would think that if someone else, agency\client, decide you are in IR35 and therefore a disguised employee (HMRC term not mine) then logically, employment rights should follow by default.

[Fred Bloggs]

And you would think that if someone else, agency\client, decide you are in IR35 and therefore a disguised employee (HMRC term not mine) then logically, employment rights should follow by default.

Nope. In the UK, tax status and employee rights are not connected. However, it will be interesting to see how this actually plays out after April 2017.

[gables]

Nope. In the UK, tax status and employee rights are not connected. However, it will be interesting to see how this actually plays out after April 2017.

I suppose what I was getting at was someone else actually saying 'you are in fact a disguised employee' rather than us making that determination. A bit like the opposite of Uber who explicitly said they weren't an employer and therefore the drivers weren't employers.

Yup, April 2017 will be interesting.

[northernladuk]

But they aren't saying we are disguised employees for this legislation. If you put a generalisation like that in its going to cause confusion.

[gables]

But they aren't saying we are disguised employees for this legislation. If you put a generalisation like that in its going to cause confusion.

Yep I get that, but I was looking at the language used by HMRC wrt IR35 over the last 16 years, whereby they use the term 'disguised employee and therefore caught by IR35', so I started musing that by having someone else and with this new legislation that being someone directly in the chain of the engagement (not HMRC\ourselves as is currently the case), aren't they (the engager) basically saying you're a disguised employee and therefore shouldn't that come with (some) employment rights?

BTW I'm not trying 'force\manufacture' anything, merely thinking out loud :-)

[Fred Bloggs]

Yep I get that, but I was looking at the language used by HMRC wrt IR35 over the last 16 years, whereby they use the term 'disguised employee and therefore caught by IR35', so I started musing that by having someone else and with this new legislation that being someone directly in the chain of the engagement (not HMRC\ourselves as is currently the case), aren't they (the engager) basically saying you're a disguised employee and therefore shouldn't that come with (some) employment rights?

BTW I'm not trying 'force\manufacture' anything, merely thinking out loud :-)

You're right. IR35 legislation is not changing. So you'd still be a disguised employee. Disguised employees do not get employment rights. Not yet, anyway......................

[malvolio]

The mistake is to misunderstand IR35 legislation. It uses employment tests to determine your tax status. There I no other connection between the two which are determined by completely different and separate legislations.

The confusion now is because full taxes are being deducted at source based on a determination by a third party. Quite rightly, if HMG want to take on people taxed as employees with no allowance for the existence of their limited company then they should take on an employee. Additionally, the AWR rules on parity will probably apply, meaning holiday pay, equality of opportunity and similar after 12 (?) weeks. And, of course, the determination of inside says that the "client" intends to exercise SDandC for the engagement.

That changes the basis of the linkage between tax and rights, but ISTM that to make it stick you have to go to an employment tribunal and use the determination to say that the client is treating you as an employee while denying you employment rights and benefits. Of course, the defence would be that taxation status and employment are separate issues. Let's hope someone bites the bullet and takes this through the legal system in depth.

Basically it's Catch22 reimagined by Kafka.

[jamesbrown]

The mistake is to misunderstand IR35 legislation. It uses employment tests to determine your tax status. There I no other connection between the two which are determined by completely different and separate legislations.

The confusion now is because full taxes are being deducted at source based on a determination by a third party. Quite rightly, if HMG want to take on people taxed as employees with no allowance for the existence of their limited company then they should take on an employee. Additionally, the AWR rules on parity will probably apply, meaning holiday pay, equality of opportunity and similar after 12 (?) weeks. And, of course, the determination of inside says that the "client" intends to exercise SDandC for the engagement.

That changes the basis of the linkage between tax and rights, but ISTM that to make it stick you have to go to an employment tribunal and use the determination to say that the client is treating you as an employee while denying you employment rights and benefits. Of course, the defence would be that taxation status and employment are separate issues. Let's hope someone bites the bullet and takes this through the legal system in depth.

Basically it's Catch22 reimagined by Kafka.

Yep, FWIW, I agree on all counts. The clue with the IR35 legislation is its placement in the ITEPA.

[youngguy]

But they aren't saying we are disguised employees for this legislation. If you put a generalisation like that in its going to cause confusion.

To be fair though , when you read the MP responses (eg on ipse) they all cite that people are disguised employees and should pay the correct tax.

So they do seem to imply we are 'employees' on one hand, yet then say tax status and employment status are not connected.

Both illogical and confusing!

[malvolio]

To be fair though , when you read the MP responses (eg on ipse) they all cite that people are disguised employees and should pay the correct tax.

So they do seem to imply we are 'employees' on one hand, yet then say tax status and employment status are not connected.

Both illogical and confusing!

Perfectly logical if you think like a politician, who are simple folk and who have trouble handling several ideas at once. They see it as someone doing the same work should be paying the same level of taxes. On that basis their position is perfectly consistent.

What escapes their limited intellect is that we get paid more for several reasons, such as not sponging off the employer for everything, that we save the client money by disappearing as soon as we aren't needed and for usually having a lot more experience and skills gained in a variety of environments so we deliver faster and to a higher quality else we wouldn't have got the gig in the first place. Also that we are 100% utilised whereas the best any employee can manage is 80% and often less, the rest being spent on non-productive things mandated by their employer. Also that we pay, on average, rather more into the tax system than any employee.

The problem is, they aren't listening to rational argument. All they understand is HMT telling them we should pay more tax in the interests of fairness. And any attempt to disabuse them of that concept is because we are trying to avoid paying taxes.

It's just like those morons who shout "racist" if anyone says "Brexit". We are trying to defeat Pavlovian reflexes