Increasing publicity over IR35

19th October 2018

In the run up to the Autumn Budget, where it is widely speculated the Government will clamp down on IR35 in the private sector, barely a week goes by without another IR35 case being in the news.

Employment tribunal claims are increasingly being launched by those caught by the IR35 reforms of the public sector. HMRC recently settled such a case out of court with one of their marketing consultants. HMRC had used their CEST employment status tool and found the engagement was caught by IR35. The worker therefore claimed she was entitled to holiday pay. Having settled the claim in full, albeit out of court, engagers may now have legitimate concerns of whether the existence of a limited company gives protection against employment rights.

In a second case, a contractor caught by IR35 had employers’ National Insurance contributions deducted along with the expected PAYE and employees’ National Insurance contributions. The tribunal judge found that the contract was not caught by IR35 at all; an embarrassment for HMRC as their CEST employment status tool had been used to make the decision. Taking a case to employment tribunal in these circumstances may now always end in the contractor getting money back – either the unlawfully held National Insurance, or a greater pay-out if the contract is found to be outside IR35.

Despite the issues surrounding workers employments rights and the accuracy of the CEST employment status indicator, it is still rumoured that private sector IR35 reforms will be announced in the Autumn Budget on 29 October. This would leave only the implementation date open to speculation – April 2019 or April 2020?

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