While many media to large private sector firms has been rushing to meet the IR35 deadline, it’s important to remember that April 6, 2021, is just the beginning of these changes coming into effect. Not only do all medium to large businesses need to continue managing this new approach to contingent workforce management to stay compliant with HM Revenue & Customs (HMRC), likely, many will now discover the initial compliance measures they put in place will need to be tweaked so they can accommodate “business-as-usual” working practices.
Since the IR35 reforms came into play on April 6, 2021, responsibility for making Status Determination Statements (SDSs) on whether the contractors a private sector firm hires are inside IR35 for tax purposes (subject to employment taxes) or outside IR35 (not subject to employment taxes) has fallen on the employer. Thankfully for those working in IT, many tech companies and recruiters already have a more mature approach to the changes, having previously grappled with the reforms when they first took effect in the public sector in 2017.
Research from Brookson Legal and Jobfeed shows that IR35 was already mentioned in almost a quarter (24%) of the sector’s job advertisements for contractor roles during the week commencing March 8, 2021. To put these figures into context, and by comparison, only 6% of adverts mentioned IR35 on the same date in other contract-reliant sectors- such as insurance and finance.
This demonstrates a greater understanding of the importance of having clear policies to attract contractor talent. That said, the sector has also been hit by knee-jerk blanket bans imposed by some significant hirers using contractors working via personal service companies. While it is easy to see the attraction in what appears to be a simple, risk-free solution, many of these businesses are likely to discover to their detriment that they have excluded themselves from up to 60-70% of the contractor talent pool that would otherwise fall outside of IR35 in a status determination.
HMRC’s much-maligned Check Employment Status for Tax (CEST) tool allows organizations to determine their contractors’ employment status for tax contributions. The breakdown from the device has shown that only 30% of these determinations to date have been inside IR35, with a further 70% being either outside IR35 (50%) or undetermined (20%).
Our determinations for our clients across multiple sectors point towards around two-thirds of contracts outside IR35. This highlights the risk businesses take when imposing a blanket ban. Missing out on access to this talent could become costly as the economy begins to scale up again in the wake of the Covid-19 coronavirus lockdowns lifting. Furthermore, HMRC might even consider blanket bans as a failure to demonstrate the “reasonable care” required by the legislation for each status determination. If so, hiring companies may be asked to review their policies later. Amending an organization’s approach to hiring contractors can only be beneficial in the long run. Ensuring the correct IR35 compliance measures are in place now will provide peace of mind regarding HMRC fines and mean that the best talent can be hired for the job, which could prove critical as we begin to exit the pandemic.
For organizations still grappling with IR35 compliance, there is no need to panic. By starting now and seeking expert help, such organizations will have enough time to implement the most appropriate solution, avoid any commercial impact, and minimize tax risk. Maintaining a good level of visibility throughout the temporary workforce and the supply chain will be vital to a business in avoiding any surprise tax bills or HMRC fines. It should be another approach embedded as business-as-usual in contingent workforce management.
Now that the pressure of the initial deadline for compliance has passed, it is strongly advised that organizations take the time to evaluate their approach to contingent workforce management carefully. No matter how prepared the business may be, some aspects of the approach will be improved as good practice evolves. Those seeking expert advice to refine these policies and processes will have access to the best contractor talent in the coming year.
