As HMRC have revised the IR35 – Employment Status Tool to its final version, we have gone through specific answers in conjunction with NHS General Practitioners environment who work as Locum in GP surgeries or NHS.  Please note that your personal circumstances may be different and we would advise you to contact the specialised team at The Accountancy Solutions before you file your EST with your contractor.

  1. Which of these describes you best?
    1. As you are filling in the form yourself, you should choose ‘The Worker’.
    2. There is no impact on the final decision of this answer.

Under HMRC definition of particular persons: Doctors (See guide ESM4060), only Agency Doctors and Locum Doctors are defined. Agency Doctor is defined as someone working under supervision and Locum Doctor is defined as an assistant or replacing someone for a short duration. General Practitioners providing services as independent contractors does not fall in either of definitions. They should be treated as an independent contractor or worker who is awarded a contract for services not a contract of service.

  1. Has the worker already started this particular engagement for the end client?
    1. We have answered it as ‘Yes’ because most of the GP who are working in the industry have been providing services for long to surgeries or NHS.
    2. Again, the answer will have no or less effect on the outcome.
  1. How does the worker provide their services to the end client?
    1. Most of the General Practitioners who are subject to IR35 work through their limited companies and will be paying more tax and national insurance if subject to IR35.
    2. If you have been working as self-employed you will be paying tax and 9% class 4 national insurance when filing your self-assessment tax return. This tool will not give a definite answer if you choose self-employed option at this stage.
    3. The answer we have chosen for this purpose is ‘As a Limited Company’.
  1. Is the worker or their business an office holder for the end client?
    1. HMRC defines office holder as someone of having an impact on the decisions of the business i.e., company director of the end client.
    2. As General Practitioners who are not the partner of the surgery and do not hold any position where they are responsible for hiring, firing or managing budgets for the surgery, or any other responsibility will be eligible for this test. Otherwise, if they do hold a position within the client’s organisation they will be deemed to be an employee.
    3. The answer to this question is ‘No’.
  1. During this engagement has the worker’s business arranged for someone else to do the work instead?
    1. No – it’s never happened
    2. As a Specialist Doctor, the duty of care to patients fall with him or her. It is highly unlikely if a GP will send someone else to do the job for which he or she has signed a contract for. Though in the case of his or her absence there are provisions where engager or the end client will call in someone which same qualifications and with the same structure of business instead of advertising for the job.
  1. Would the end client accept the worker’s business sending someone else to do this work instead?
    1. The answer will be ‘No’.
    2. The end client if satisfied can accept any other person to work on behalf of my client but it is a means tested situation. The person deputising or working in place of my client should be of same qualification and experience and mostly of the same reputation.
  1. Has the worker’s business needed to pay a helper to do a significant amount of the work?
    1. A GP job will be independent as an answer to select is ‘No’.
    2. As the work performed by GP’s is of highly skilled nature and in cases where the doctor is not running a clinic within a surgery, no help would be required. In case if he or she chooses to start a clinic within a surgery as of his or her specialisation in special interest i.e., gynaecology, end client will be charging them for the room rent and services provided by the staff.
  1. Can the end client move the worker to a different task or project than they originally agreed to do?
    1. As from the experience, most of General Practitioners are engaged to a specific role. Either they are asked to take triage calls or see a number of patients with some visits. Any variation to these contracts warrants a new agreement and effects rate of pay.
    2. So we will choose ‘No – that would need to be arranged under a new contract or formal agreement’ as the answer.
  1. Once the worker starts the engagement, can the end client decide how the work is done
    1. We bring your attention to an example given by HMRC in guide ESM0523 and ESM0527. As an expert as explained in HMRC guidance control over, how the work is completed or services performed will have very little impact on the determination of status.
    2. The end client can’t decide how the work needs to be done because it’s a highly skilled role
  1. Can the end client decide the schedule of working hours?
    1. As GP’s or contractor will never agree to work if they are busy or have other engagements and end client needs to schedule when contractors are free to take up the job. It falls on my contractor’s discretion whether to accept a job or not.
    2. The worker and the end client agree on a schedule
  1. Can the worker choose where they work?
    1. GP’s works at end clients place, as it has been done so in the past. But looking at other scenarios, where they choose to work, with online services working from home will change the answer to this question.
    2. The answer to choose ‘No – the end client decides’.
  1. What does the worker have to provide for this engagement that they can’t claim as an expense from the end client or an agency?
    1. Other expenses we would include professional memberships, CPD, indemnity insurance which is almost 10% of the fees received and all these expenses are allowable under HMRC regulations
    2. Other expenses – including significant travel and subsistence expenses (not including commuting) or the cost of business premises outside of the home
  1. What’s the main way the worker is paid for this engagement?
    1. As per the industry normal practice, General Practitioners agree on an hourly pay.
    2. The answer would be ‘An hourly, daily or weekly rate’.
  1. If the end client isn’t satisfied with the worker’s output, when would the worker have to put it right?
    1. This question is of very specific nature and we will bring your attention to paperwork i.e., and time spends to complete diagnosis of a patient of complex nature. As it happens frequently and General Practitioners must complete paperwork for the patients they have seen, they normally do not bill for the extra hours spent on completing these tasks. In some circumstances, they have to take work home in order to complete it in their free time.
    2. Similarly, if GP is examining a patient and it turns out to be of complex nature and need more examination he or she may spend more time other than they have been contracted for.
    3. Some of these examples may not apply to a contract of this nature but primary duty of GP is welfare towards patients which should not be time bound in any way.
    4. Thus ‘Outside of their usual working hours at an additional cost to the worker’ should be the correct answer.

We have done extensive research on these questions according to HMRC fact-finding guide and have listed the best possible answers relating to a normal situation when a General practitioner work as a contractor for surgery or NHS.  Decisions must me made after considering what actually happens in practice as explained by HMRC. IR35 implication on contractors working for public bodies must be considered on individual basis. If you need to discuss your particular circumstances, please call The Accountancy Solutions on 01216297768 or email us Aatif.malik@accountancysolutions.com.

Legal Disclaimer: We would specifically advise not to use this information under what so ever reason to fill in EST to gain specific answers or results. The reader should contact us if he or she needs any information or explanation of any legal terms and treatment thereof. Every contract is different and contractors have their own circumstances which will affect the outcome of Employment Status Tool results.

Update: Since this blog was published HMRC have revised its Employment Status Tool to 1.3.1 version which has different questions.