November 2009

Government Targets ‘False’ Self-Employment

Senior Manager Ian Hales

Auker Rhodes Chartered Accountants warn of the problem of false self-employment in the construction industry.

Ian Hales from Auker Rhodes said “False self-employment occurs where workers are treated as self-employed for tax and National Insurance purposes, even though the way in which they work on a day-to-day basis demonstrates that there is an ‘employment relationship’.

Currently, the tax legislation does not define employment or self-employment, and disputes are decided by the courts, based on the facts of each case and previous case law precedent, normally using three established definitions of employment:

• Mutuality of obligation – that an employer is obliged to provide work and an employee is obliged to perform it.
• Control – an employer can control how employees perform their work.
• Personal service – an employee works for an employer under a contract of personal service.

“HMRC has recently lost several tribunal and court cases, and plans to move away from the current case law approach, towards devising statutory criteria, which would define construction workers as employees for Tax and National Insurance (NI) purposes, but not for general or employment law purposes”.

The proposed legislation states that for a worker to be considered self-employed for tax or NI purposes, one or more of the following criteria must apply:

• Provision of plant and equipment (but not including general tools)
• Provision of all materials
• Provision of other workers

The government is mainly targeting the 300,000 or so labour-only subcontractors as it believes a large proportion of those are ‘working under employment terms’, costing the treasury up to £350million annually.

However, many in the industry believe the tests are too broad and could capture workers who are genuinely self-employed but may not, for example, provide their own equipment. It could also lead to confusion as some workers are classed as self-employed from the point of view of tax and NI, but not for other purposes.

And if the changes do go through, it may be that some workers will change their working arrangements in order to keep hold of their self-employed status.

The government is currently seeking comments on its proposals, which can be sent to Lisa Fitzpatrick, False self-employment in the construction industry consultation, Personal Tax Team, HM Treasury, 2/SE, 1 Horse Guards Road, SW1A 2HQ or email construction.consultation@hm-treasury.gov.uk.

For a full copy of the consultation document, visit the HM Treasury website.

The author is a Senior Manager in Auker Rhodes Chartered Accountants of Bradford, members of UK200Group with offices throughout the UK and Associates overseas.

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