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If you are self-employed and work through your own Ltd company, this will affect you. If you're a sole trader, it shouldn't, but you should be aware in case your employer tries to make blanket changes. This already applies to practices but it will soon apply to all settings and people working OOH should especially take note.
It’s been over two years since I last wrote about IR35 and its impact on locums, but changes to the regulations are once again planned, and this is the first of a series of blogs to guide you on what it means for you.
As a recap, IR35 or “intermediaries legislation” is a set of rules designed to prevent tax avoidance. Its purpose is to catch people who are in “disguised employment” in which a worker receives payment from a client through an intermediary, such as their own limited company, but had the company not existed then the worker would be in an employed relationship with the client, or “engager.”
Prior to April 2017 it was always the responsibility of the limited company in such situations to determine the employment status of each engagement. In April 2017 the rules were changed so that where the engager is a public sector body (eg: a GP practice or NHS Trust) it is their responsibility, and not that of the locum’s limited company to determine the status and deduct tax and NI at source if the engagement were deemed to be employed.
You can refresh your memory of the previous BMA guidance on IR35 by reading the expert guidance which can found here, and also my previous explanatory blog here.
What did this mean in 2017?
HMRC published tools to assist engagers and workers in assessing their employment status for tax purposes. Unfortunately, despite guidance that each engagement should be assessed individually with the tool on a case-by-case basis, some providers applied blanket policies declaring all locums, whether working through a limited company or as a sole trader, to be employed for tax purposes. Despite the rules not changing for sole traders – with the question for them being purely one of employment status – many providers applied such blanket policies to all “off payroll” workers.
This resulted in confusion for locums, and destabilisation of the workforce as affected locums terminated their engagements with such providers. The BMA published a statement regarding this issue which can be found here.
What is changing?
From April 2020, the rules will be changed again so that as well as public sector bodies, private sector bodies which are defined as medium or large will also be responsible for determining employment status for tax of all workers whom they engage via an intermediary. This means locums providing services to non-public sector bodies such as corporations who provide Out-of-Hours (OOH), Urgent Care, Walk-in-Centres etc. may now be affected from April 2020.
What is the BMA doing?
The BMA is keen to avoid similar confusion and instability as was the case in 2017. Therefore, we will be publishing ongoing guidance as well as meeting with key stakeholders to minimise disruption and ensure locums are fully informed as to how to determine their employment status for each engagement. Additionally, we will be publishing advice on how to ensure locums understand what statutory employment rights they may be entitled to if they are in fact found to be employed, and any steps they may be able to take in order to enjoy such rights.
What should I do in the meantime?
All locums working either directly or through a limited company should look at each engagement they undertake to determine their employment status for tax. A link to the HMRC employment status tool can be found below. You should also discuss the future changes with any client you engage so that if changes to your employment status are likely, you have adequate time to take steps to address this.
Matt Mayer is the sessional GPs committee deputy chair
A very clear summary - thank you. I just have to point out, though that saying "If you're a sole trader... you should be aware in case your employer tries to make blanket changes" doesn't really make sense... I'm a sole trader, so my employer is me! And very a reasonable employer I always find myself, I must say...
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There is a set of specific rules in the IR35 legislation that the public body applies in making this decision. ...
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