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  • Crawford Temple

Addressing the issues of non-compliance in the Umbrella and Payment Intermediary Sector

Over the last 40 years the way in which we work has changed dramatically. ‘Jobs for Life' and ‘the 9-5’ are gone, and an increasing number of people are opting to work for themselves as contractors and freelancers. As a result of these changes, legislators and policymakers are playing catch-up as they try to come to terms with how people now want to work.


Ill-thought-through and hasty legislation, in which the government has ignored advice and recommendations from stakeholders and industry experts, has had unintended consequences and has failed to address the three most pressing issues and challenges facing the industry – non-compliance, transparency and enforcement.


Non-compliance – fuelled by the complexity of the legislation combined with an understandable desire for workers to achieve the highest levels of return for their work, rather than competition based on the strength of a business model and the levels of service offered to workers. This leads to some providers offering ‘have I got a good idea for you’ schemes claiming to be able to operate under different tax rules than others, which skews workers’ choice of providers.


Transparency – frequent changes to legislation and its increasing complexity has led to ambiguity around workers’ working arrangements. Off-payroll working, for instance, which results in workers typically operating through an Umbrella company, is the latest example which would benefit from far more transparency.


Enforcement – currently enforcement strategies serve only to incentivise non-compliance and fail to support the compliant parts of the sector. There is little visible enforcement, action is delayed, and workers are targeted for recovery, rather than those who circumvent or disregard the rules.


Is the only way to stop this perpetual cycle of legislation a radical rethink and simplification of the rules?


Certainly companies have benefited from the agility and flexibility that they are offered by using contractors but as we examine the nature of recent legislation it’s clear that specific solutions are needed to clarify urgent issues. It’s also apparent that everyone in the supply chain needs to work together to ensure a healthy, vibrant industry in the future.



The most pressing issues


This situation is not new – it has grown over the last 15 years, despite warnings of the consequences of ignoring the challenges we face.


We look at the most pressing issues which would enable the sector to move towards a more transparent, open and compliant marketplace. We can effect change quickly and easily but the rules still need reviewing and simplifying to ensure that the legislative framework supports both the government’s aims and objectives and those of business.


Benchmarked PAYE Rate – we suggest that where the rate offered is not PAYE all advertised roles should use a set formula to create a benchmarked PAYE rate that must also be shown. This information, which could be supported by Key Information Documents, will both remove distortion and misunderstanding, and also allow workers a ‘common currency of value’ when assessing different roles.


Status Indicator – more information needs to be offered to a contractor regarding the status of any assignment in terms of Off-Payroll and Supervision, Direction and Control so that they can truly assess its value. While Off-Payroll status can only be finalised once the worker has been considered, this should indicate a provisional status and there are many situations where the worker’s input would not alter the outcome. BEIS (Department for Business, Energy and Industrial Strategy) should consider how both these requirements can be developed and implemented through Agency Regulations.


HMRC Umbrella Pay Calculator – HMRC must immediately develop a fully-functional umbrella pay calculator and host it on its .gov website. Fields should be customisable and should include Margin and Rate (both daily and hourly, days/hours worked, pay frequency, pension in or opted out, apprenticeship levy), weeks worked per annum and a tax code. All costs, including employment costs, should also be shown to enable provider comparison and to highlight where disguised remuneration, skimming or hidden costs occur. A reporting function could also be included to assist with enforcement. Providers whose illustrations align with HMRC’s would be able to emphasise their compliance.


HMRC Umbrella Payslip Checker – In addition to the pay calculator, HMRC should develop an umbrella payslip checker using customisable fields to show relevant data. Again, compliant providers would be able to emphasise their transparency and those producing false data could be identified. It would also enable workers to check the validity of their payslips via the Personal Tax Account and raise any concerns, using a reporting function if necessary.


Proactive Use of Existing Data – HMRC need to immediately develop a tool to integrate intermediary reporting data against RTI data in order to highlight potential disguised remuneration schemes. This could be used to allow authorised users API access to interrogate the data (excluding personal information) within set parameters. Small changes in the data would allow identification of payment intermediaries applying PAYE. Trends in the rapid increase of workers within providers and recruitment companies could also be analysed to further inform enforcement.


Work Proactively with Sector Bodies – HMRC, BEIS including EASI, should seek to develop closer relationships with compliance bodies and the wider sector bodies, with compliance bodies setting their own compliance standards to develop a more structured approach. This would allow departments to inform and be informed of pressure points in the market and react more quickly to market distortions.


Protecting the Integrity of Compliance Reviews – HMRC should seek ways to work with compliance providers to ensure that compliance reviews are of the highest standard. Using intermediary reporting versus RTI returns comparison tool would provide a way to add extra validity to the reviews. We have been seeking this arrangement for some time to provide a significant barrier to entry for non-compliant offerings and to highlight digressions more efficiently.


Clearly Define What Compliance Looks Like – Transparency is the strongest weapon against non-compliance. However, currently there is very little information on the .gov website regarding operational processes or procedures. We suggest that working with the sector’s compliance standards and agreeing and publishing their views on this would provide a benefit to HMRC.



Rebalancing Incentives


Employers’ NI Threshold – We suggest that the Employers’ National Insurance threshold be removed and all calculated additional income be used to support an overall reduction in the headline rate.


We do not believe that this incentive delivers on its original objectives. On the contrary, we believe that it provides an additional incentive for employers to limit workers’ hours to save employment costs and results in two or three people being employed in place of a single, full-time job. This would also remove incentives for zero-hours contracts, limiting their use to where it is appropriate and desired, not on a cost-saving basis.


Align Pensions’ Auto-Enrolment – We believe that it is time to address the threshold for pensions’ auto-enrolment which provides a financial incentive to suppress workers’ hours because of a need to maintain overall pay below thresholds.


All employers should be required to auto-enrol all workers with no thresholds on earnings. If a worker is below the current thresholds this should be used as a benchmark so that earnings below this level do not require an employee contribution, only an employer one. Only at the point when earnings reach the threshold should workers be offered the opportunity to full enrol. They would then have the option to opt out, at which point the employer’s contribution would cease.


Create Self Assessment Tax Return [SATR]-Style Rules for Enforcement – Currently there is no incentive for HMRC to proactively seek out disguised remuneration or non-compliant providers, despite holding data on such activities.


We suggest that rules similar to SATR be created. This would limit the time HMRC has to act on individual transgressions to 12 months, given that they held the data and did not act on it. After this time HMRC’s powers should focus on recovery from the provider, promoter or any other party that knowingly promotes such arrangements.



Wider Review and Simplification of the Legislative Framework


Simplification of Existing Legislative Framework – The government’s reactive approach to legislation has resulted in a complex, overlapping and cumbersome framework and has resulted in two extremely negative outcomes:

  1. It makes enforcement more complicated and therefore more costly

  2. It indirectly promotes non-compliance by offering such operators more opportunities for longer

We suggest that a review be undertaken of both HMRC and BEIS legislation in this sector to identify overlap and inconsistencies and the results used to redraft a clearer framework.


Consistency of Enforcement – One benefit of such a review would be to create a simplified approach to enforcement and to remove inconsistencies that the market currently faces.


If a review is not forthcoming, there needs to be rigorous training and development across enforcement to avoid high degrees of variation and interpretation.


Consider Alternatives to Off-Payroll – We do not believe that IR35 provides a long-term foundation for effective legislation and we recommend a review to find viable alternatives.


We suggest a hirer’s levy payable on all workers, thereby removing the need for status checks. This levy could be set at an initial level of around 3%, increasing over time to an agreed ceiling. This would simplify the process and protect tax revenues.


If this is not forthcoming and the existing framework remains, we suggest that employers’ NI be credited directly to a contractor’s limited company via the recruitment agency to simplify payment and offer contractors a choice without risk to HMRC.


Create Compliance Networks – If this issue of compliance is not solved by legislation, we suggest creating a framework, similar to that in Financial Services, of Compliance Networks to take on the responsibility of enforcement of compliance. The regulatory framework for such networks is already in place so defining their role would be simple, and a formal role would allow them to be defined within legislation, with clear liabilities.


We suggest that compliance networks should be adopted for both payment intermediaries and recruitment companies, making the task of enforcement both simpler and more cost effective. Assessment, with random sampling of members, would also speed up the process, enabling high numbers to be regulated in a shorter time. Large firms would be able to register directly allowing users of these firms to carry out their own due diligence and assume the role, and liabilities of a compliance network.


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