On 9 December 2015 HMRC published its detailed proposals and draft PAYE legislation (with equivalent NIC legislation to follow), which would place significant limits on expenses claims made by workers paid though employment agencies and similar structures. The proposals are expected to take effect from 6 April 2016.

How does the new legislation work?
In principle the change is disarmingly simple, and will now deem that each engagement of the worker, by the employment agency etc., is regarded as a separate employment.

Since 1998, legislation has deemed that if substantially the whole period of an employment is performed at a single place, then any travel (i.e. from home or another private location) in order to get to or from that place, is ‘ordinary commuting’ i.e. non-allowable.

However employment agencies have often argued that a worker, albeit ‘moved’ from one period/place of client engagement to another period/place, is employed on a single overarching contract of employment by the agency. If this argument succeeds, substantially all of the employment is not performed at a single place and hence any such travel to reach that place is to a ‘temporary’ rather than permanent workplace i.e. an allowable journey. The new legislation therefore expects to defeat this argument, by ensuring that each client engagement will be considered separately as if it was a stand-alone employment.

It is HMRC’s view that some workers of employment businesses are currently able to enjoy ‘unfair’ tax deductions. Also it is perceived that in many such cases the ’employer’ (or paying business) retains most of the benefit of this. Indeed it seems HMRC may possibly regard many ‘umbrella payrolls’ as adding little or no true commercial value, beyond generating income for themselves at the expense of the Exchequer (i.e. typically by charging a fee to the worker in return for arranging payment of ‘tax free’ expenses). The new legislation therefore seeks to remove any such perceived unfair tax/NIC advantages.

Which workers will be caught under the new legislation?
As a minimum:
– An individual (worker) must personally provide services. There will be some situations where personal services are demonstrably not provided; however it will be assumed most agency workers do provide their services personally, and the onus would be the parties if they wish to show that this test is not met.
– The personal services must be supplied to another person (the client).
– However any direct contract between the client and the worker would be excluded, hence the arrangement must involve an ’employment intermediary’ (such as an employment business or agency) being contractually placed between worker and client.
– The new rules do not however apply if the manner in which the worker provides the services is not subject to (or to the right of) supervision, direction or control, i.e. by any person. HMRC is known to interpret these tests both widely and stringently, and again it must be assumed the onus would be very much on the parties to prove that this test is not met.
– Work undertaken wholly within the client’s home is also excluded (this is a factual test).

One chink of light is that the draft guidance does accept that secondment of a worker from one place to another within the same engagement would potentially still be regarded as a move to a temporary workplace (assuming that secondment was for 2 years or less). Whilst there may be certain limited circumstances where this exception might apply, we imagine it would be difficult for an agency to ‘manipulate’ the length of a particular engagement in order to seek to take advantage of the ‘relaxation’. In practice most engagement periods are for a finite period and are determined by factors outside the employment agency’s control i.e. they are based on the client’s requirement primarily.

What about Personal Service Companies (PSCs)?
PSCs are themselves an ’employment intermediary’, and hence the worker supplied by the PSC is also potentially caught under the rules. However the draft legislation confirms the Government’s intention, as outlined in the Chancellor’s recent Autumn 2015 statement, that the PSC will have to be within ‘IR35’ to also be caught within these new travel restrictions.

In simple terms the ‘IR35’ legislation applies if the worker would be an employee of the client but for the interposition of the PSC. At present the large majority of PSCs regard their contracts as outside of IR35 and, if this is correct, then the PSC will not be caught by the new restrictions. However HMRC is currently considering consultation responses on the extent to which the IR35 rules should themselves be overhauled. Whilst HMRC sources have recently indicated that no hard and fast decisions (on IR35 changes) have yet been made, it is very much a question of ‘watching this space’.

As a PSC structure will only have to consider the new travel rules if they are also caught by IR35, another potential stumbling block is how precisely to define a PSC? In most cases a PSC will be self-evident i.e. a company owned and run by one man or woman; however for instance the structure and ownership of jointly run businesses may have to be looked at more carefully. In general the IR35 legislation (Section 48 et. seq. of Income Tax (Earnings and Pensions) Act 2003), is drawn widely to include as many businesses as possible within its definition of a PSC for this purpose. However paradoxically, in the context of the new legislation, IR35 may prove to be an excluding factor, i.e. if you are defined as a PSC but are outside of IR35, you are also outside of the new travel rules.

When might the new proposed ‘transfers of debt’ rules apply?
In common with other ‘anti-avoidance’ legislation, the new rules propose that unpaid PAYE debts can be transferred to other relevant parties. This follows a pattern initially established with the 2006 rules applicable to ‘Managed Service Companies’, as well as the 2014 legislation seeking to prevent the payment of agency workers on a ‘falsely self-employed’ basis, or being paid via ‘offshore’ companies where work has been undertaken in the UK. Briefly the new transfers of debt proposals are that:
-PAYE/NIC due on any taxable travel expenses would in the first instance be sought from the employment intermediary which paid those expenses.
– However if those duties remain unpaid, the debts may be transferred to any director of that employment intermediary, by means of serving a ‘personal liability notice’.
– As mentioned, if the IR35 rules apply to a PSC then so will the new travel rules. If in this event the PSC fails to account for the PAYE/NIC on taxable travel expenses, the debts may be transferred to the director(s) of the PSC. Presumably such a PSC may have also failed to recognise and properly apply the IR35 rules themselves; hence the business will face a challenge on more than one front.
– If there is evidence that a ‘client’ (i.e. the end user of the worker’s services) has fraudulently colluded with the intermediary i.e. by providing false evidence that the worker is not subject to supervision, direction or control, then debts may be transferred to the client (and in turn, the client’s directors if the debts remain unpaid). Whilst in practice a client will no doubt wish to determine the actual extent of supervision, direction or control of each worker, on an individual basis, under the new regime they would be unwise to share that process (formally or informally) with the Agency without extreme caution.

If you require any further information on these proposals, or indeed other ’employment intermediary’ obligations including the proposed IR35 overhaul, please contact ET4B.