Public Sector Locums IR35 Ultimatum
The NHS has issued a public sector locums IR35 ultimatum.
All NHS doctors are now inside IR35 – or at least their jobs are.
It doesn’t matter a whit if they are legally outside IR35.
In fact, it doesn’t matter a whit if they are performing operations and doing their work in a way that it is outside IR35.
Their job is now inside IR35 and that is all that matters.
Supervision, Direction and Control as an IR35 Factor
Most qualified NHS doctors would not be under Supervision, Direction and Control once they get past the stage of being junior doctors.
Those locum doctors who deputise for surgery doctors when they are off, or ill, see patients on their own. They are not under any control there.
When they work at a hospital they don’t go round in doctor gangs to see patients.
Indeed, in most hospitals you would be lucky to see one.
So, tick that one as helping to take them outside of IR35.
Right of Substitution as an IR35 Factor
It is also the perfect job for being able to name a substitute, one of the three main pillars of IR35, i.e. the Right of Substitution.
Whereas it would be difficult to get an IT developer to take over another IT developer’s work when he is half way through it, that’s not the way it works with doctors.
It’s not case of one doctor performing an operation for a few days and then getting another one in to finish the job when he, or she, is not able to come in.
So, that’s the Right of Substitution fine for them.
Locum Doctors Contracts
Locum doctors are used as needed, i.e. to fill in. They don’t have set contracts for set periods of time.
So, here is no Mutuality of Obligation here.
So, the three main pillars of IR35, Control, Substitution and Mutuality of Obligation would put locum doctors well outside IR35.
NHS Making Locum Doctors Jobs Inside IR35
However, the NHS, under pressure from the Government has made their jobs inside IR35.
How could that be?
It is basically just a tax raid.
Locum doctors are legally outside IR35.
Yet they will have to pay the tax.
It’s like having to pay Death Duties when you are not even dead.
The same applies to many temp nurses, supply teachers and many IT Contractors too.
It’s an outrage.
There’s a danger that many of them will leave the public sector.
IR35 Changes in Private Sector
This Public Sector Locums IR35 Ultimatum could be replicated in the private sector too.
The MD of one major agency has told us that he knows of one IT Contractor at HMRC who is working on a plan to roll these IR35 changes out to the private sector, as well, in 12 months time.
Some contractors are saying that they wouldn’t dare.
They say that private sector companies wouldn’t be pushed around as easily as department managers in the public sector.
I wouldn’t stick my mortgage on it!
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