A year ago, many businesses would have been gearing up for the IR35 reforms which were due to come into force in April 2020. However, when COVID-19 struck and turned the world upside down, the government took the sensible decision to shelve the reforms for a year allowing businesses to focus on the significant challenges facing them outside of IR35.
However, that doesn’t mean it has gone away – the intention was to delay the reforms for a year and we have no reason to believe that the new rules will not be coming into force in April 2021.
So, businesses now need to reconsider how they will be impacted by these IR35 reforms. Many businesses will already have prepared for these changes, whilst others may have been grateful for the additional time to get to grips with the effect it will have on them and to put mechanisms for dealing with the new obligations in place.
Others may well find that the impact of COVID-19 has changed their business model to the extent that there will be further reliance on the contractor market than there had previously been, due to the specialist skills and flexibility that the sector offers.
In this article, we will look to explore the current position and proposed changes; the impact this may have on businesses and individual contractors and what can be done to prepare for these challenges.
The current position
IR35 (or the “off-payroll rules”) is the name given to the tax legislation which was introduced in 1999 in an attempt to ensure that contractors who supply their services to businesses via a Personal Service Company (PSC) paid the correct tax. Currently, when a business engages with a PSC, the PSC is responsible for considering whether the individual would be deemed to be an employee of the business if there was no PSC. If the determination is that the individual works “inside IR35”, the PSC must account for National Insurance Contributions (NICs) and Income Tax through PAYE. If they fall outside IR35, they are considered to be operating a self-employed business and the PSC will pay corporation tax rates.
However, whilst HMRC estimates that around 1/3 of individuals working through PSCs should fall inside IR35 and be taxed as deemed employees, it believes that only about 10% actually do so under the current rules.
To address this perceived large scale non-compliance, the law was initially changed in 2017 for the public sector, and now, similar changes are proposed to be applied in the private sector from April 2021.
The proposed position post April 2021
- The business will be required to make a determination of the individual contractor’s IR35 status (taking ‘reasonable care’ in doing so) rather than the PSC.
- The business will be responsible for issuing their determination and reasoning for the IR35 status and notifying that determination to various parties in the chain (e.g. the PSC and any employment agency).
- If the determination is that the individual is within IR35, the “fee payer” will be responsible for deducting PAYE and employee NICs as well as bearing responsibility for employer NICs and any apprenticeship levy. The fee payer will either be the business (if it pays the PSC directly), or another intermediary such as an agency.
- If the business fails to comply with its obligations in connection with status determination under the reformed IR35 rules, then the liability for the tax will be for the business, even if it is not the fee payer.
Small business exemption
A notable and welcome exemption is that the legislation will not apply to a “small business”. A company will be classified as a small business if it meets two or more of the following criteria – an annual turnover of no more than £10.2m; a balance sheet total not above £5.1m; or no more than 50 employees. Small businesses will not need to determine IR35 status of contractors, with this responsibility remaining with the PSC. (Note that there are specific restrictions which apply to joint ventures, groups and connected parties).
So what should businesses be doing
The key message is that businesses likely to be affected by the reforms must start preparing now. This will take a concerted approach, with communication between business, contractor and any further intermediaries being key.
Review your current and future engagements
You will need to take steps to identify the contractors you engage; what they do; what their current IR35 status is and how crucial they are to delivery of your key business aims.
Then comes the difficult part of determining each of those contractors’ IR35 status. Consider how you will do this – do you have the necessary expertise and resource in-house to commit to this exercise, or do you need to consider enlisting external specialist advice?
Whilst HMRC has an on-line CEST tool which is intended to assist businesses in carrying out this assessment, it has been widely criticised as not fit for purpose, producing arbitrary and unreliable results. You should be cautious about relying on this alone and an independent IR35 review is likely to produce a far more reliable and informative outcome.
Lessons have been learned from the public sector reforms, and it is to be hoped that most private sector businesses will avoid the blanket assessment approach and will instead involve contractors and intermediaries in discussions. These early discussions with your contractors will be key - for example, other work carried out by contractors for other clients will be relevant to the IR35 assessment and without open discussions at an early stage, you may not be privy to such key information.
A comprehensive and joined-up process should be developed for incorporating this assessment into your onboarding system, to ensure that contractors do not commence work until they have received and accepted their IR35 determination.
Communication is key
Contractors are likely to be wary of these reforms, so you will want to reassure them early on that you are taking all the right steps to address the IR35 reform and will carry out accurate assessments, avoiding them inappropriately being classified as inside IR35.
A process should be put in place for communicating the status determination, along with rationale, down the supply chain to the individual. Whilst the legislation also requires businesses to implement a process for dealing with status determination disagreements, giving a voice to the contractors who may feel impotent in the face of these reforms, the legislation goes no further than a requirement to “consider” any representations made and then communicate the business’ conclusion. So it is not clear how much bite this “appeal” process will have in practice.
Working practices override written contracts
It has long been accepted that terms of a written contract will be ignored in the face of conflicting working practices, so businesses will need to educate their hiring managers about ensuring that the working environment is not inconsistent with the IR35 status determination, by, for example, putting a higher level of control or supervision on a contractor who is deemed to be outside IR35.
We may also see the impact of COVID-19 where a business has changed the way it works, for example with employees now working remotely, meaning that factors such as control and flexibility in determining status will not necessarily be applied with the same results as they were pre COVID-19.
Consider drawing up appropriate Statements of Work to reflect those genuine working practices. This should set out what services are to be delivered against what timescales or targets and at what fixed price, creating an outcome based contract which is followed in practice.
At what cost?
As part of the initial assessment, you will need to identify those business critical contractors who will be crucial to the business meeting its key targets, and, if necessary, consider allocating budget so that fees can be grossed up (to cover the excess tax) where they fall inside the IR35 test, to ensure retention of those vital skills.
When it comes to pricing re-negotiations following IR35 assessments, you will need to factor in the additional costs of employer’s national insurance contributions when determining the appropriate fee structure, and don’t ignore hidden costs such as review of payroll software and systems to ensure that they are fit for purpose in this new and more onerous landscape.
In light of the potentially significant impact that these reforms will have on businesses and contractors it is vital to move swiftly to take advantage of the time available prior to 6 April 2021 to fully prepare for the reforms. Preparation will be key to ensure that you are in the best position to attract and retain the most talented contractors.
We are well placed at Ashfords to assist businesses with all aspects of carrying out IR35 assessments and putting necessary processes in place. If you require any advice on this topic then please contact Su Apps, Andy Braithwaite or Nicola Manclark.