IR35 reforms – Warnings becoming a reality
We’re almost three months in since the IR35 private sector reforms came into effect, and we’ve kept a close eye on what has happened in the marketplace.
As per one of our previous articles about HMRC’s “light touch” introduction, there has been little legislative or financial impact so far. We have yet to see or hear about how HMRC are policing the legislation post-reform.
We will, no doubt, hear more on these issues over the coming months, and Workr Group will keep you fully updated as we hear more.
However, we are already seeing some impact from the introduction of the changes. Businesses that prepared a well-conducted, structured status determination process and followed reasonable care recommendations appear to have achieved business as usual without any major hold-ups.
For those that didn’t prepare (and in some cases, still haven’t) or made blanket or policy statement changes, the impact has been almost immediate.
IR35 – Predictions and warnings?
While most of the initial talk around the impact of the IR35 reforms was focused on the financial impact of making an incorrect determination, there were other predictions and warnings about the potential impact.
The IR35 reforms stated that the engager needed to make a status determination for each contractor and take reasonable care in doing so. This change in responsibility created additional administration for the engager due to the initial assessment and the potential for challenges, and the added associated burden.
With the anticipated shift of volumes of contractors to umbrella solutions, warnings were made to engagers about ensuring that their supply chains were compliant and operating in line with UK tax and employment law.
Probably the most significant risk of all to engagers was the loss of specialised and high-calibre talent due to “inside IR35” determinations. There were repeated warnings made about contractors migrating to companies offering “outside IR35” assignments and leaving gaping skills gaps behind them.
Three months in, and what are we seeing?
In the short time since the introduction of the reforms, we have already seen and heard of several cases where engagers that took a blanket statement approach and are now bogged down with a flood of challenges from contractors.
Failure to consider or respond to an SDS challenge will likely be regarded as a lack of reasonable care by HMRC and will significantly increase the risk of liability should HMRC find an assessment to be incorrect.
As anticipated, many contractors who received ‘inside IR35’ determinations have moved onto engagers payrolls as employees or transferred to umbrella company payroll models. This may seem a good solution for both engager and HMRC, however, market undertones suggest that there are still many illegal umbrella schemes around that could leave contractors, agencies and engagers in serious trouble if found to be complicit.
A lack of due diligence on the supply chain is highly likely to be frowned upon by HMRC, and once the reforms have bedded down, we suspect that the umbrella sector will come under renewed scrutiny from HMRC.
Most prominently, we have seen an immediate response in the migration of contractors.
For example, in the rail infrastructure sector, we have seen a large number of specialist contractors migrate from an engager that determined them to be inside IR35 directly to a competitor offering outside IR35 assignments.
The original engager took a blanket approach and ruled all of their PSC contractors inside IR35 and suffered an almost instant loss of a significant and skilled section of their workforce. They are now struggling to find the talent and expertise needed to replace those PSCs that moved on. This is having a significant impact on its ability to complete the work and projects on time and to standard.
We have also seen many examples of contractors who were given little choice but to transfer to employment contracts directly with engagers and are now resigning and moving to more lucrative permanent roles with competitors or alternatives.
Nobody wants to hear the phrase “I told you so”; however, there were plenty of warnings made before the IR35 reforms regarding the potential impact for engagers who chose to ignore the reforms or make blanket decisions.
The consequences of these actions are already being felt and are only likely to get worse as more contractors migrate to engagers offering a credible determination process and outside IR35 assignments.
Additionally, risks also remain for those engagers who chose to take a blanket approach. HMRC will undoubtedly conduct investigations into those sectors or businesses that promoted a shift to umbrella models.
It’s not too late to implement or change your process regarding IR35, and we encourage anyone responsible for IR35 compliance to ensure that your determination process is fit for purpose and meets HMRC’s reasonable care requirements.
To help you retain a competitive advantage and meet your reasonable care responsibilities concerning IR35 compliance, Workr Groups’ specialist team can provide impartial advice and support.
For a free, no-obligation audit and assessment of your IR35 compliance process, you can speak directly with Andy Webster, Founder and Director, Workr Compliance, on 07827 810851 or at firstname.lastname@example.org.
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