FOI Disclosure Log

Customer Request Details

11 December 2018

In April 2017 Government introduced new rules into the public sector called the off-payroll reforms, commonly referred to as “IR35”.

https://www.gov.uk/guidance/off-payroll-working-in-the-public-sector-reform-of-intermediaries-legislation

 

We understand you may (or may not) have planned for this and developed a set of internal guidelines to be used when on boarding flexible workers, or contractors.

 

Please can you:

1.            Tell us if you are familiar with these reforms – yes or no?

2.            send us a copy of your internal guidelines used for any internal guidance,

3.            send us any policies you use surrounding the reforms.

4.            send us any documents you use to explain your policies to agencies who supply workers to you.

5.            Send us your internal guidance explaining how you assess the status for each contractor.



East Herts Council Response

11 December 2018

I am writing to acknowledge your written request for information.

Your request is being considered and you will receive the information requested within the statutory timescale of 20 working days as defined by the Freedom of Information Act 2000, subject to the information not being exempt or containing reference to a third party.

The Act defines a number of exemptions, which may prevent release of the information you have requested.  There will be an assessment of your request and if any of the exemption categories apply then the information will not be released.  You will be informed if this is the case, including your rights of appeal.

If the information you request contains reference to a third party then they may be consulted prior to a decision being taken on whether or not to release the information to you.  You will be informed if this is the case.

There may be a fee payable for this information, this will be considered and you will be informed if any fees are payable.  In this event the fee must be paid before the information is processed and released.  The 20 working day time limit for the response is suspended until receipt of payment.

If you have any queries about the processing of your request then please do not hesitate to contact me.

It is important that you include the above FOI reference number on all correspondence related to this request.

Your personal details will be held within out Information Request case management system, and only used for the purposes of evaluating and processing your request.

While details of your information request may be published on the council website, your personal details will never be published or released to anyone outside the council unless it is required by the Information Commissioners Office.

Thank you for your request.

 



East Herts Council Response

17 December 2018

Thank you for your request for information, this has now been processed and the information that we hold is enclosed.

1.            Tell us if you are familiar with these reforms – yes or no? Yes
2.            send us a copy of your internal guidelines used for any internal guidance - Please see below.
3.            send us any policies you use surrounding the reforms - We don’t have any policies relating to the reforms
4.            send us any documents you use to explain your policies to agencies who supply workers to you - We don’t have any
5.            Send us your internal guidance explaining how you assess the status for each contractor - We use the HMRC online ‘check employment status for tax’ questionnaire’


Recruitment - Agency Workers & Consultants
Step 1
If you want to engage someone off payroll, e.g. agency staff or a consultant/sole trader you must contact your HR Officer in the first instance. You should ideally do this before you approach any agencies/individuals but definitely before anyone starts working for us.
Step 2
Your HR Officer will arrange to complete HMRC’s online ‘check employment status for tax’ questionnaire with you.
The IR35 regulations
It is very important that we complete the questionnaire because we need to determine if the individual falls under the IR35 regulations. The IR35 regulations apply where someone provides their services via an intermediary but would be an employee if they were providing their services directly. Where IR35 applies, we have an obligation to inform the individual that they fall under the regulations and their tax and NI must be deducted at source.
IR35 can apply to individuals working through agencies, umbrella companies or those with their own limited companies. It cannot apply to sole traders as there is no intermediary but HMRC can class some sole traders as ‘employed for tax purposes’.
Step 3
Once you have completed the questionnaire, if you haven’t already, you can contact agencies/individuals in order to source someone to do the work. We do not have agreements with any agencies so you are free to contact whatever agency you like but we would recommend getting prices from a few different ones as the rates can vary.
Depending on the outcome of the questionnaire, HR will confirm the individual’s employment status and advise which of the following categories applies:
1. The individual falls outside of IR35/they are a sole trader but not classed as employed for tax purposes. You can engage this individual directly and pay them via invoice.
2. The individual falls under IR35 but works through an agency or umbrella company so already has their tax and NI deducted at source. You must inform the individual and agency/umbrella company that they come under the IR35 regulations. Please copy your HR Officer into the email that you send to them. These individuals can be paid via invoice.
3. The individual has their own limited company and falls under IR35 or they are a sole traders classed as ‘employed for tax purposes’. These individuals need to be paid through the payroll to ensure that tax and NI are deducted at source and you will not be able to pay them via invoice.
Where c) applies, you should be aware of the following:
• The individual will need to complete a new starters form (available from HR) so that they can be set up on the payroll (please note that they are not classed as an employee).
• The individual will need to submit an invoice to their department, which should be forwarded to Payroll by the 6th of the month with the manager’s approval. Invoices should be for complete calendar months.
• The invoice will be paid, and tax and NI will be deducted and paid directly to HMRC through RTI. The council will also pay employers NICS.  If VAT applies this will also be paid through the payroll as a separate element.
• If expenses are itemised separately to their payment then we cannot pay more than 45p per mile. However if expenses are included within the hourly/daily rate then we can pay the full amount.
• Once the contract has ended payroll will complete report the date of leaving to HMRC and issue the individual with a P45.
Step 4
You will need to complete the IT new starters form for your chosen individual (please note there is a mandatory field on this form where you will need to put the name of the HR Officer that you completed the IR35 questionnaire with, IT will not set them up without this) and contact Facilities to get them an access card/parking permit.
You should also complete an off-payroll worker employment details form which is sent to the relevant HR Officer.
Once the individual has started, you should ensure that they have a full induction to the council. More informations can be found on the guide for new starters page.
As part of the induction process, you should ensure that the individual completes a  Confidentiality agreement.doc which should be sent to the relevant HR Officer once signed.
Step 5
You should keep HR updated regarding off-payroll workers and if you plan to extend them beyond the original date you need to let HR, IT and Facilities know. You must also let them know when the individual leaves the council.
GDPR considerations
If you are sent CVs from agencies please be aware that this constitutes personal data and as such, once you have recruited the successful candidate you will need to destroy any hard copies that you hold and delete any emails containing CVs that you have.

If you have any queries or complaint about the processing of your request please do not hesitate to contact me.

 

Alternatively for more information on the Freedom of Information Act contact the Information Commissioner at:

Information Commissioners Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Telephone 0303 123 1113

https://ico.org.uk/

 

It is important that you include the above FOI reference number on all correspondence related to this request.

 

Thank you for your request.