calsdad:
This is interesting specifically on SD&C for HGV drivers. Still clear as mud. gov.uk/hmrc-internal-manual … al/esm2059
As i read more of the legislation it becomes more interesting. Is IR35 the real issue or is it agency legislation that takes precedence. If it is agency legislation then it reads like the agency is responsible for operating PAYE. If this is the case why have no agencies been publically taken apart by hmrc…
The plot thickens.
Indeed it’s not very clear at all. When I tried to fact-check my earlier post, I found that I hadn’t properly understood what I’d previously read on this subject (or else it was just plain rubbish that I’d read in the first place).
Here in ESM 2059, it is far from clear (based on common sense) that there is any distinction between the SD&C present in the two scenarios (other than the fact that the second scenario differs from the first in a way as to make the presence of SD&C explicit, whereas in the first scenario the same rights of SD&C are likely to be present but remain latent).
Also, because many requirements (such as H&S requirements, and driving breaks) have to be complied with by law, there seems to be an understanding that steps taken to ensure compliance with these rules ‘don’t count’ for the purposes of SD&C - even though it is obvious that SD&C is occurring in respect of these issues. There is no law, so far as I know, that says an operator must actually take steps in relation to workers to enforce compliance, separate from hiring reputable and competent subcontractors to whom the job can be entrusted (whose workers the operator does not instruct on how to ensure compliance).
It seems to me that having to inform a worker of the drivers hours rules would suggest that this worker is not self-employed (if he doesn’t even know the rules applicable to his supposed line of business), and any monitoring or enforcement of the rules by the hirer is the assumption of a right of SD&C. Or, if the suspicion is that these self-employed workers cannot be trusted to comply (by virtue of the fact that they have no public reputation to lose, or that the law protects the payment of their wages), then obviously the hirer is assuming rights of SD&C in order to ensure that compliance does occur.
The irony of this guidance is, load security is a requirement mandated by law much in the same way as drivers hours. And yet, in the second scenario, requiring the worker to ensure the goods are “safely secured before transit” it is used as an example of SD&C! The worker in the second scenario is also told he must make sure the correct items are unloaded, and that paperwork is signed - surely that applies to the first scenario also (any courier would be expected to deliver goods correctly and in full, and almost any delivery involves gathering proof of delivery)!?
You wouldn’t hire a builder or a plumber at home, and tell him what clothing he must wear or how he should comply with the H&S risks of your site - you expect him to know these things and leave to his judgment the question of how those risks should be managed (although you might point out unusual hazards, without necessarily specifying what the tradesman must do to manage them). If you do start governing the tradesman to that extent, then you exert SD&C, and basically become his employer instead of his customer.
The real problem in this area of law, is that the powers that be simply don’t want to let the law settle decisively to its natural state. You can’t get a ■■■ paper between these scenarios, so why on Earth are they trying to?
. The very fact that an Independent Tribunal lays down the law rather than HMRC kind of gives the impression that HMRCs arguments are not so set in stone as they would want us all to believe they are!