IR35 Reforms in the Veterinary Sector - Two months on, where are we now

For anyone fulfilling a role within the contingent veterinary supply chain, be it locum vet or nurse, recruiter or practice, the phrase ‘IR35’ will likely be one of the more frequently heard, so far, in 2021. Reforms suspended in 2020 due to Covid, were ushered into force on April 6th and with it a new approach to locum work in the UK.

Pre reforms and indeed over the past two months, I’ve spoken to a lot of people in the Veterinary industry and no matter where they sit in the supply chain the same question is apparent- “How does IR35 affect me?

The answer is of course different across the board. So, over the coming weeks I will be delving a little deeper into the responsibilities and requirements, with a series of blogs focussed at answering key questions for those performing services across the industry. For anyone that has any burning questions, please reach out (rhys@ir35navigator.com) and I can include them in future publications (after responding directly of course).

Today, I’ll be summarising three key situations that I’ve seen develop, post reforms, and some of the ways the locum industry can protect itself. Those are;

  1. Blanket ‘Inside IR35’ determinations to all roles being offered
  2. Locums assessing that IR35 doesn’t apply to them, sometimes incorrectly
  3. Statement of Work and why it could be used more widely in the locum industry

For those not yet clear about whether IR35 affects them, the flowcharts here may be of use. They take you through your roles and responsibilities and help to assess when IR35 applies to a given situation.

  • Locum flowchart- here
  • Recruiter flowchart- here
  • Practice flowchart- here

 

Blanket Inside IR35 Determinations

Perhaps the largest impact amongst the community to date has been the widespread application of blanket, inside IR35, determinations. For those used to performing their services via a company, the movement from Outside IR35 to Inside IR35 is both commercially damaging and potentially a red flag to HMRC given that the change in status has been brought about exclusively by the reforms not the working practices.

Whilst it is understandable that those affected by the reforms will do all that they can to protect themselves from the potentially negative impacts of the shift in liability, blanket determinations are more likely to increase their risk rather than limit it.

This is due to the requirement for reasonable care to be observed by the practice when making a determination about the employment status of a worker. Failure to do so will result in the worker’s income tax and national insurance contributions becoming the responsibility of practice. HMRC are clear about examples that may result in a lack of reasonable care being taken in their internal manuals.

These include;

  • determining that every worker who provides their services through an intermediary is caught by the off-payroll working rules without giving any consideration to the specific facts of each individual case
  • failing to reconsider determinations where there has been a material change in circumstances
  • failing to take account of all relevant evidence
Source (https://www.gov.uk/hmrc-internal-manuals/employment-status-manual/esm10014)

It is important therefore that organisations seeking to restrict the detrimental effects of IR35 reform don’t fall into the trap of simply assigning every role an inside IR35 status, arbitrarily. It is not effective in achieving the primary goal and exposes you to greater risk than is necessary.

Instead, adopt a simple compliance framework, which assesses each role accurately and delivers the outcome to the locum, thereby adhering to the reasonable care requirement, allowing truly outside IR35 roles to remain outside and inside IR35 roles to continue compliantly. This allows for the tax risk to be mitigated and for increased commercial advantage, given your ability to offer outside IR35 roles when those around you are not. A reminder- the highest quality locums know their value and may only accept outside IR35 roles.

We have previously recorded a number of explainer videos as to why blanket determinations simply do not work, one of which can be found here if you’d like more detail.

 

Locums concluding that if the reforms to not apply, IR35 does not apply

A common misconception is that if the practice is covered by the small company exemption, the IR35 rules don’t apply.

IR35 legislation was introduced back in 2000 and continues to apply today. The IR35 reforms, or off payroll working rules have simply introduced changes to which party is responsible for making the IR35 status assessment and the liable party. If your practice or recruiter is a small company for the purposes of the legislation (see earlier flowchart) then the responsibility for assessing the IR35 correctly falls on your individual company, along with the Tax risk for an incorrect assessment.

If you are taking an outside IR35 role with a practice that is small, then you must conduct an assessment on the role you are performing, to gather up essential evidence in support of your decision should HMRC come knocking. If you need any help here, we have put together a short video on some of the points that define IR35 status here.

 

 An increased acknowledgement for the applicability of Statement of Work (“SOW”) for the industry

The Statement of Work model is not “new”. In the USA, consultancy companies have been on the rise for years, and we predict that’s the way it will go in the UK, too. Similarly in Germany there have only been two ways of temporary working for years- either as a PAYE “temp” or as a genuine freelancer. Consultancy Services, also known as “Statement of Work”, “Outsourced Service”, “Contracted Out Service”, “Outcome Based Service”, “Project Based Service” or just simply just a “SOW”, are all essentially the same thing when operated compliantly- the provision of a service, not labour.

The veterinary world continues to become more and more specialised and practices will find a particular skill set that you need in Oncology or Advanced Surgical skills for example. Where this is for a defined project term and the specialist is engaged to perform a series of key deliverables, then a statement of work contract may be more suitable than a time and materials contract.

This is because IR35 reforms do not apply to Statement of Work arrangements regardless of the company size. It therefore allows everyone in the supply chain to continue operating as they were, prior to the reforms, removing all the risk associated with the reforms for the practice and allowing the locum to operate freely, as they have been, utilising their own company.

If you understand the huge benefits of engaging consultancies who deliver their services through a SOW, you will reap the benefits of not only being exempt from the compliance burdens of Off Payroll, but having an enormous amount of talent available on your doorstep. But there is a massive caveat here- the SOW must be delivered compliantly. Take advice from someone like IR35 Navigator, where our legal experts conduct full framework analysis to ensure accuracy in your approach.

 

Summary

The IR35 reforms have highlighted a huge number of unexpected issues for the locum industry. Despite the confusion, a simple compliance framework can be implemented and administered easily and cost effectively, whilst the benefits of offering, compliant, outside IR35 Contracts are vast.

Those who rely on the locum industry must be looking very closely at their responsibilities and ensuring that steps taken to restrict risk are not actually acting contradictory to their aims.

As above, I’ve been speaking to a large number of the community over the past few months, for free, to help them adopt changes brought by the reforms. If this might be of help to you, please feel free to get in touch on facebook or email.

Next week I’ll be looking closer at the issue of blanket banning, how locums can challenge it, how recruiters can liaise with their end clients to avoid it and how practices can implement sensible compliance frameworks to avoid the negative impact on it.

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