16 Jul IR35 tax tribunal case : George Mantides Ltd v HMRC
An NHS locum entered into contracts with two hospitals wins the First-tier Tax Tribunal of one contract while losing the other.
In this IR35 cases, judge has to decide whether the contacts are similar to employment or not.
The Locum has used his Personal Service Company at the Royal Berkshire Hospital (RBH) and Medway Maritime Hospital (MMH). At both hospitals, the appellant’s work is treating outpatient clinics, conducting procedures and minor operations. At one hospital, he undertakes little on-call duty.
The judge concluded the following given the expertise of NHS locum at both hospitals.
- There was almost no direct supervision of his work.
- The appellant did not report to anyone on a daily basis.
- The appellant was not subject to control over in performing his duties while there was some review – not close supervision of his work.
However, RBH contract includes three differences
- Notice period is one week while at MMH is one day. Judge commented that one day notice is illusory and does not point as employment.
- An Obligation to provide 10 half a day a week. There would not have been even a qualified obligation to provide work. That points away from employment.
- There was a valid substitution clause.
On those three differences the First-tier Tax Tribunal, Judge Charles Hellier concluded George Mantides’ limited company, ruling RBH inside (“IR35 applies”) and the MMH outside of IR35 (“IR35 does not apply”).
What does the decision mean for NHS locums and contractors and for the private sector from 6/4/2020?
For NHS trusts, the decision demonstrates that ‘outside IR35’ status is clearly achievable.