Employment status exceptions

Situations where employment status rules vary

We only outline the general rules in our deciding the status of your personal assistant section. For most people employing a personal assistant (PA) these rules will be sufficient in deciding whether their PA is employed or self-employed. However, there are some groups who have special rules applied when working out employment status.

Here we draw attention to a few of these groups.

Agency workers
Employing a family member
Volunteers

Agency workers

If you decide to hire a PA through an agency, you will generally not need to worry about tax employment status or tax and National Insurance (unless the agency acts as a 'finder' of the PA only). The care agency will normally be responsible for deciding the PA’s status and paying their tax and National Insurance over to HMRC. The PA will usually be employed by the agency rather than you. Instead you will enter into an agreement with the agency which sets out what tasks the PA will cover and the terms and conditions covering your payments to the agency and other important issues.

However you should be aware that some agencies have been encouraging their care workers to be self employed in inappropriate circumstances to try to reduce their own costs. This may have implications for you as the ‘end client’ and this is explained below.

Important information about ‘self-employed’ agency workers

In general, agency workers should be taxed through Pay As You Earn (PAYE) – this is operated by the agency that the worker signs up with, rather than the ‘end client’ that the worker is placed with. (End client is the person who receives the services of the care assistant. So if you used an agency to provide you with a care assistant, then you would be the end client.)

Where the agency has to operate PAYE then it also has to pay employer National Insurance in respect of the employee's wages. This is a cost to the agency, however, it is usually covered in the fee that is charged to the end client by the agency.

In recent years, some agencies have been trying to avoid having to operate PAYE for workers – this means that their costs are reduced, the benefit of which is sometimes passed on to the end client. They do this by saying that the worker is 'self-employed', so that the worker has to pay their tax and National Insurance to HMRC themselves and there is no employer National Insurance to pay (the agency’s only real role then, is to match the worker to the end client).

However, treating a worker as ‘self-employed’ when they should actually be treated as an ‘employee’ leaves the worker in a vulnerable position and means that the Government is losing money. Since 6 April 2014, the Government have tightened up the rules to prevent agencies being able to do this so easily.

The new rules essentially say that the only time a care agency can escape operating PAYE is where the worker is under NO supervision, direction or control by the end client. As such, and as part of the sign up process, they may ask the end client to complete a checklist or questionnaire, in writing for their records, so that they can establish whether the worker will be under supervision, direction or control (and thus, whether they have to operate PAYE).

If you decide to use an agency to provide you with a care worker and you find yourself in the situation where you are asked questions about what supervision, direction or control the worker will be under, you must ensure you answer these questions very accurately and carefully. In the event of an enquiry by HMRC, such documents will be closely examined and HMRC could come to you instead of the agency for any unpaid PAYE in situations where it should have been operated but was not, depending on their interpretation of the information provided by you to the agency.

You should be aware that from 6 April 2015, agencies must send details to HMRC of workers they place with clients who are not being treated as employees and where they didn’t operate PAYE. This means HMRC will have much more visibility over agency worker engagements.

HMRC have developed extensive guidance which includes examples of where HMRC would consider that the manner in which the worker provides their services is and is not subject to supervision, direction or control.
From the guidance, we can see that HMRC consider supervision, direction and control are best defined as follows:

Supervision is someone overseeing a person doing work, to ensure that person is doing the work they are required to do and it is being done correctly to the required standard. Supervision can also involve helping the person where appropriate in order to develop their skills and knowledge.

Direction is someone making a person do is/her work in a certain way by providing them with instructions, guidance or advice as to how the work must be done. Someone providing direction will often coordinate how the work is done, as it is being undertaken.

Control is someone dictating what work a person does and how they go about doing that work. Control also includes someone having the power to move the person from one job to another.

They also give a helpful example of where they think supervision, direction and control would not apply in the context of a care worker (see page 14 of the document accessed through the link). However where you give instructions to the care worker and have procedures which must be followed by them, it is likely there will be supervision, direction or control over the manner in which the services are provided and therefore a PAYE obligation on the agency.  

It may be tempting to give the agency information which means that they do not operate PAYE, as this may mean lower costs for you. However where there is any element of doubt, then it is best to err on the side of caution and tell the agency that the worker will be under your supervision, direction and control, so as to protect yourself as best as possible from any potential problems with HMRC at a later date.

Why else might I need to consider whether the agency worker is under my supervision, direction or control?

Agency workers often work on lots of different engagements and may incur substantial travel costs in getting to their various work locations. If they are not entitled to relief for their travel expenses under the normal tax rules, some of them use a loophole in the law which means they claim relief on their travel and subsistence expenses when it would not normally be available.

From April 2016 the Government have tried to close this loophole by saying that agency workers (and other temporary workers employed through an employment intermediary) will be prevented from claiming relief on their travel and subsistence expenses if they are under the supervision, direction or control, of any person, in the manner in which they undertake their role.

As such, from April 2016, you may be asked whether a worker who is supplied to you by an agency is under supervision, direction or control (or the right thereof) in the manner they under take their work – as explained in more detail above. Please note that workers are assumed to be under supervision, direction or control, unless it is shown otherwise.

You can find more information about the April 2016 travel and subsistence changes on GOV.UK.

Important information about agency workers from an ‘offshore agency’

If the agency that you use is an offshore agency, please be aware that in some circumstances, you – the end user – may be obliged to operate PAYE and NIC. 

HMRC’s guidance on the matter can be found in their Employment Income Manual.

Although offshore agencies are not as prolific as they once were, it is important to ensure you check whether the agency that you are using has a trading address in the UK.  Please remember that the Isle of Man and the Channel Islands (e.g. Jersey and Guernsey) are ‘offshore’ in this context.

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Employing a family member

When trying to work out if a family member is an employee, you need to apply the general principles of whether someone is engaged under a ‘contract of service’ to the facts of the situation.  

If they are an employee, it is important to understand that  the existence of a family relationship does not bypass any tax laws – so, for tax purposes, employing a family member is just like employing anyone else.

You should also ensure you consider the minimum wage position and any other employment law considerations.

For National Insurance contribution purposes only, if someone is employed by a family member in a private home in which both family members (i.e. the employee and the employer) live, then the employment is disregarded for NIC purposes only. This exception will not apply if the employment is being carried out for the purpose of any trade or business by the employer.

The family members that count for this purpose are:

  • father or mother
  • grandfather or grandmother
  • son or daughter
  • grandson or granddaughter
  • stepfather, stepmother, stepson or stepdaughter
  • brother or sister
  • half-brother or half-sister

See the HMRC website for information about this exception.

Direct payments cannot usually be used to employ a close relative who lives in the same household as the person receiving care, so we would not expect to see this special rule being relevant very often.

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Volunteers

You may receive occasional help from family, friends or neighbours. Even though you will not pay them for such help, you may give them flowers or chocolates as a thank you and/or reimburse any out of pocket expenses such as travel expenses – for example if they run an errand into town for you. You may be wondering if there are any tax implications. Let’s look at the rules around ‘voluntary workers’.

According to this HMRC guidance, a person who does voluntary unpaid work will not normally be engaged under a contract of employment. If there is no employment, it follows that the reimbursement of any expenses incurred by voluntary workers carrying out their voluntary work will not be liable to income tax. Neither will the reimbursement of any extra costs that might be incurred for example, travel expenses between home and work.

The expenses paid must be supported by receipts or be a reasonable estimate of the cost. If the expenses paid are more than the actual expenses incurred (or accepted ‘scale rates’ in the case of mileage) HMRC may consider the voluntary worker to be receiving a wage or salary for their services and the payment could be treated either as employment income or as other taxable income.

With regards to gifts, it should be noted that volunteers can be provided with a token of appreciation as long as it is not high value. However the gifts should be a genuine, one-off thank you gifts – if there is a sense that chocolates or flowers for example, are expected, hinted at or regularly given, or are a reward for services performed, then they become payment for work done and are potentially taxable.

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