In May 2017, the NHS revised its decision to place all contractors and locum staff inside IR35. This follows concerns that public sector organisations were interpreting the controversial new IR35 proposals in an over-cautious 'catch-all' manner. (See: NHS U-turn over blanket IR35 decisions for contractors - Shout99, May 17)
Although, contractor tax specialists, Qdos Contractor, welcomed the backtrack, they have also highlighted that this decision does not necessarily guarantee that all contractors now sit ‘outside IR35’.
Seb Maley, Qdos Contractor CEO said: “While the recent NHS U-turn of course came as very positive news, agencies and NHS trusts must remember that ‘reasonable care’ when assessing IR35 status works both ways. In short, rather than making blanket determinations, the NHS’s change in stance simply means it is now prepared to take a fairer and more considered position when it comes to setting the IR35 status of its locum and contractor workforce.
“From experience, we certainly expect a proportion of NHS locums and contractors to sit outside IR35 when individually assessed. But to make the assumption that all NHS locums and contractors now sit ‘outside IR35’ because of the recent U-turn would be naïve. It would also risk opening up a large liability on any agencies involved, not to mention the NHS itself.
“It’s important to remember that every working agreement is individual, and arrangements vary from contractor to contractor. For example, given the different levels of supervision, direction and control that locum Doctors have compared to locum Nurses, IR35 status will vary from role to role. And in many cases, locum Nurses will typically fall inside IR35.
“That said, what matters is that every locum and contractor is assessed on a case-by-case basis, as outlined in the final IR35 legislation. This will ensure each contractor is given a fair and accurate assessment.”
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Susie Hughes © Shout99 2017