Oh dear. When it comes to IR35, it's not been going very well for Her Majesty's Revenue & Customs (HMRC) recently. In the last month, the UK's tax authority has lost two high profile IR35 cases it has brought, which doesn’t bode well for its plans to expand the legislation's reach in 2020.
IR35 was first introduced in 2000 to make sure contractors pay the right amount of tax and national insurance. Its aim is to stop workers using an intermediary company - paying less tax in the process - when they should really be employed by the client they are working for and, as such, treated as an employee.
At present, IR35 only applies to the public sector but it is due to be rolled out to the private sector sometime in 2020. This is delayed from the original 2018 implementation date and, looking at the court cases HMRC has lost so far, it would seem a prudent delay.
In the two most recent cases, featuring TV presenters Lorraine Kelly and Kaye Adams, the judges ruled that the presenters were not acting as employed workers of the broadcasters (ITV and BBC respectively) as HMRC had claimed.
Lorraine Kelly was effectively a performer; she did not receive sick or holiday pay; and was allowed to carry out other work, i.e. did not work exclusively for ITV. In the case of Kaye Adams, the judged ruled that, whilst Adams' contract may have had certain employee-like clauses, they were never exercised and so it was more a relationship providing services than an employment contract.
And it's not just high profile news stories that are adding to the criticism of the legislation. In May 2017, one of the UK’s largest public sector bodies, the NHS, backtracked on its previous guidance that all agency and locum workers should be included within IR35. It has now decided that each worker should be considered on a case-by-case basis.
There have been a number of criticisms levelled at IR35 but the main issue seems to be its complexity and ambiguity, as HMRC is finding out for itself. Until the authority that is meant to be enforcing IR35 can get its head around its own rules then how are organisations and workers meant to?
And if you are currently experiencing the question of whether you, or a worker in your organisation, should come under IR35, you could do worse than use HMRC’s own IR35 status checker.
Mind you, even that has come in for its own criticism!