IR35 reforms

One of the measures the Chancellor of the Exchequer, Kwasi Kwarteng referred to in the delivery of the Growth Plan 2022 (commonly referred to as the mini-Budget) concerned moves to simplify IR35 rules. This measure was one of the pre-election promises of the new Prime Minister, Liz Truss. In the end it seems that the Chancellor went further than expected and announced moves to simplify the IR35 rules that included the full repeal of the 2017 and 2021 reforms.

The rules for individuals providing services to the public sector via an intermediary such as a personal service company (PSC) changed from April 2017. The rules shifted the responsibility for deciding whether the intermediaries’ legislation applies, known as IR35, from the intermediary itself to the public sector receiving the service. These rules were further extended in April 2021 for individuals providing services to certain medium and large-sized clients private sector organisations via an intermediary such as a personal service company (PSC). Small companies remained exempt.

It should be noted, that whilst the full details on this change remain to be published, the repeal of the 2017 and 2021 reforms is set to take place with effect from the start of the 2023-24 tax year on 6 April 2023.

From this date, contractors providing services via an intermediary will once again be responsible for compliance with the IR35 rules to determine their employment status and to pay the necessary tax and National Insurance contributions. This will remove the burden that currently falls on businesses and public authorities to determine the employment status of their contractors.

The government will need to ensure that these reforms do not result in increased tax avoidance and there may be new measures put in place in that regard. We will publish further information when more details are made available.

Minimum wage for different types of work

Employers must ensure they are paying staff at least the National Minimum Wage (NMW) or National Living Wage (NLW). The NMW and the NLW are the minimum legal amounts that employers must pay their workers.

HMRC’s guidance states that there are different ways of checking that workers get the minimum wage depending on whether they are:

  • paid by the hour (known as ‘time work’);
  • paid an annual salary, under a contract for a basic number of hours each year (known as ‘salaried hours’);
  • paid by the piece – the number of things they make, or tasks they complete (known as ‘output work’); and
  • paid in other ways (known as ‘unmeasured work’) once you know how many basic hours you can calculate if they are being paid at least the minimum wage to which they are entitled. 

There are penalties for employers that are found to have underpaid their workers and, in some cases, there may be criminal prosecutions. The NLW is the minimum hourly rate that must be paid to those aged 23 or over. The rates for the period from 1 April 2022 – 31 March 2023 are as follows. The rate for the NLW is £9.50. The hourly rate of the NMW (for 21-22 year olds) is £9.18. The hourly rate for 18-20 year olds is £6.83 and the rate for workers above the school leaving age but under 18 is £4.81. The NMW rate for apprentices is £4.81.

If an employee has been underpaid, the employer must pay any arrears without delay. There are penalties for non-payment of up to 200% of the amount owed. The penalty is reduced by 50% if all of the unpaid wages and 50% of the penalty are paid in full within 14 days.

The maximum fine for non-payment can be up to £20,000 per employee and employers who fail to pay face up to a 15-year ban from being a company director as well as being publicly named and shamed.

PAYE Settlement Agreements

A PAYE Settlement Agreement (PSA) allows employers to make one annual payment to cover all the tax and National Insurance due on small or irregular taxable expenses or benefits for employees.

The expenses or benefits included in a PSA must be defined as one of the following;

  • minor – e.g., a small birthday present;
  • irregular – e.g., one-off relocation expenses over £8,000 (these are tax-free below £8,000); and
  • impracticable (difficult to work out the value of or divide up between individual employees) – e.g., shared cars or taxi journeys.

Employers that are required to notify HMRC of the value of items included in a PAYE settlement agreement (PSA) must do so using form PSA1.

The deadline for applying for a PSA for 2021-22 expired on 5 July 2022. Any tax or National Insurance due for 2021-22 under a PSA must be paid electronically to clear into HMRC’s bank account by 22 October 2022. Employers that pay by cheque must ensure that the payment reaches HMRC’s Accounts Office by 19 October 2022.  There may be interest and / or a late payment penalty due where the payment is made late.

Claiming Employment Allowance

The Employment Allowance reduces an employer's NIC liability. The current allowance is £5,000. An employer can claim less than the maximum if this covers or eliminates their total Class 1 NIC bill. 

The allowance is only available to employers that have employer NIC liabilities of under £100,000 in the previous tax year. Connected employers or those with multiple PAYE schemes will have their contributions aggregated to assess eligibility for the allowance. The Employment Allowance can be used against employer Class 1 NICs liability. It cannot be used against Class 1A or Class 1B NICs liabilities. The allowance can only be claimed once across all employer’s PAYE schemes or connected companies. De minimis state aid rules may also apply in restricting the use of the allowance.

Employment Allowance claims need to be re-submitted each tax year. There are currently a number of excluded categories where employers cannot claim. This includes limited companies with a single director – and no other employees – as well as employees whose earnings are within IR35 ‘off-payroll working rules’.

You can also backdate your claim for the Employment Allowance for the previous four tax years.

For the tax years 2018-19 and 2019-20, it does not matter how much your employers’ Class 1 NICs liability was or how much de minimis state aid you received.

The Employment allowance was £3,000 in 2018-19 and 2019-20 and £4,000 in 2020-21 and 2021-22.

Termination payments

The tax treatment of termination payments has changed significantly over recent years. The changes have aligned the rules for tax and secondary National Insurance contributions (employer (NICs)) by making an employer liable to pay NICs on termination payments they make to their employees. 

Employees do not pay tax and National Insurance on:

  • Contributions their employer makes to a registered pension scheme as part of their termination payment – tax will be due on any employer contributions that go above the Annual Allowance.
  • Legal costs related to the settlement that their employer pays directly to their solicitor.
  • A termination payment they receive because of an injury, illness or disability that prevents them from being able to continue to do their job.

Employees do not usually pay tax on the first combined £30,000 of:

  • statutory redundancy pay;
  • additional severance or enhanced redundancy payments your employer gives you; and
  • non-cash benefits, for example company property you keep after your employment ends.

Employees are required to pay tax on any amount over a combined total of £30,000.

An employer is required to pay employer Class 1A NICs on any part of a termination payment that exceeds the £30,000 threshold.

Employees are liable to pay tax and National Insurance on payments they would have earned whilst working. This includes lump sum payments in lieu of notice (PILONs), pay on ‘gardening leave’ and part of any severance, enhanced redundancy or non-cash benefits they receive (known as Post-Employment Notice Pay (PENP).

Completing P11D forms to report benefits in kind

The deadline for submitting the 2021-22 forms P11D, P11D(b) and P9D is 6 July 2022. The forms can be submitted using commercial software or via HMRC’s PAYE online service. Employees must also be provided with a copy of the information relating to them on these forms by the same date. P11D forms are used to provide information to HMRC on all Benefits in Kind (BiKs), including those under the Optional Remuneration Arrangements (OpRAs) unless the employer has registered to payroll benefits.

This is known as payrolling and removes the requirement to complete a P11D for the selected benefits. However, a P11D(b) is still required for Class 1A National Insurance payments regardless of whether the benefits are being reported via P11D or payrolled. The deadline for paying Class 1A NICs is 22 July 2022 (or 19 July if paying by cheque).

Where no benefits were provided from 6 April 2021 to 5 April 2022 and a form P11D(b) or P11D(b) reminder is received, employers can either submit a 'nil' return or notify HMRC online that no return is required. Employers should ensure that they complete their P11D accurately, including all the details of cars and loans provided. There are penalties of £100 per 50 employees for each month or part month a P11D(b) is late.  There are also penalties and interest for late payments.

Any tax or National Insurance due for 2021-22 under a PAYE Settlement Agreement (PSA) needs to be paid electronically to clear into HMRC’s bank account by 22 October 2022 (19 October 2022 for payments by cheque). This does not need to be reported on a P11D.

When you are required to register for PAYE

There are a multitude of rules that new businesses must follow when they start employing staff for the first time. These include ensuring registering for PAYE as an employer with HMRC. This must be done before the first payday and this process must even be completed by directors of a limited company who are employed by the company.

There is no requirement to register as an employer in the event that none of your employees are paid more than £123 a week, don’t receive expenses or benefits and don’t have another job or get a pension. However, even if this was the case you are still required to keep payroll records.

Setting up payroll for the first time can be daunting and we are here to help. As a general rule you have the choice between using a payroll provider or running your own payroll. If you decide to run your own payroll you must choose suitable payroll software.

HMRC also needs to be sent information about tax and other deductions from employees’ pay when the employee is paid. This is done using the Real Time Information (RTI) system which involves employers sending HMRC information each tax month. Tax months run from the 6th of one month to the 5th of the next.

You must also ensure that you are complying with the minimum wage legislation, check that any new employees have the legal right to work in the UK and to be aware that you will be required to offer a workplace pension scheme.

NIC Rates and Allowances for 2022-23

HMRC has published an updated version of the rates and thresholds for employers following the spring statement. The main changes relate to the increases in the National Insurance (NIC) thresholds. This will see the NIC threshold increase from £9,880 to £12,570 from 6 July 2022 and result in the alignment of the Primary Threshold (PT) for Class 1 NICs and Lower Profits Limit (LPL) for Class 4 NICs, with the personal allowance of £12,570.

The PT and LPL will be £9,880 (as previously announced) from 6 April 2022 – 5 July 2022 and £12,570 from 6 July 2022 – 5 April 2023. This means the LPL will be £11,908 for the 2022-23 tax year which is equivalent to 13 weeks of the threshold at £9,880 and 39 weeks at £12,570. HMRC’s document also includes weekly and monthly figures to help calculate weekly / monthly pay.

The increases in NICs of 1.25% – first announced last year – also took effect from April 2022. These increases will be ring-fenced to provide funding for the NHS, health and social care.

The increases will also apply to Class 1 contributions (paid by employees) above the primary and secondary thresholds. Employers should ensure that they have prepared for the increase as these changes will increase wage costs from April 2022.

All existing NICs reliefs to support employers will continue to apply. In addition to the employment allowance, this includes the following:

  • employees under the age of 21
  • apprentices under the age of 25
  • qualifying Freeport employees
  • armed forces veteran

There are also corresponding increases in Secondary Class 1 NICs (paid by employers) and Class 4 NICs (paid by the self-employed).

Reporting travel and subsistence benefits

There is no requirement to report certain routine expenses to HMRC. The types of expenses and benefits covered are referred to as exemptions and have replaced dispensations which can no longer be applied for. 

The travel and subsistence benefits that do not need to be reported include reimbursed costs to employees covering business travel. As an alternative to paying the employee back for actual costs incurred, HMRC’s benchmark scale rates or a special bespoke scale rate may be used. Employers only need to apply for an exemption if they want to use a bespoke scale rate which needs to be approved by HMRC. 

Employers that reimburse their employees with more than the necessary costs need to take action. The extra amounts should be added to employee’s other earnings and PAYE and Class 1 NIC’s will be due.

There is usually no tax relief for private travel between a permanent workplace and an employees’ home. Accounting for any tax due on private travel depends on who arranged the transport and who paid for it. There are a number of exceptions such as temporary workplaces and where the employee has a travelling appointment. 

Employers must also ensure that they have a checking system in place to ensure that employees are making valid expenses claims. This requirement is usually satisfied by asking employees to submit or retain receipts as evidence of a valid expense claim. HMRC is clear that employees aren’t allowed to check their own expenses and that someone else within the company must be responsible to ensure a claim is legitimate. 

Calculating Minimum Wage if paid annual salary

New National Minimum Wage and National Living Wage rates will come into effect on 1 April 2021. These changes will see the National Living Wage increase by 19p to an hourly rate of £8.91 and the National Minimum Wage will increase to £8.36 (a rise of 16p). There are also increases in the other minimum wage thresholds. 

There are special rules to check that salaried workers who receive an annual salary are being paid at least the equivalent of the minimum wage. 

HMRC’s guidance states that someone is undertaking salaried hours work if all of the following apply:

  • their contract states how many hours they must work in return for their salary (their basic hours)
  • they’re paid in equal, regular instalments through the year, for example monthly or every 4 weeks
  • there is no more than a month between each payment
  • they do not get paid more than once a week

Once you know how many basic hours are relevant you can calculate if the employees are being paid at least the minimum wage to which they are entitled. 

There are penalties for employers that are found to have underpaid their workers and, in some cases, there may be criminal prosecutions.