Dragonfly Consultancy Ltd v HMRC

Ch D [2008] STC 3030; [2008] EWHC 2113 (Ch)

An individual provided services, via a personal service company, to the Automobile Association (AA), via an agency that had an agreement to supply the AA with temporary staff. He provided his services almost entirely to the AA.

HMRC took the view that, had the arrangement been directly between the AA and the service company (ie. without the involvement of the agency) then IR35 would have applied and the payments received by the company subject to PAYE accordingly.

The commissioner observed that B 'worked fairly regular hours during each engagement, … worked on parts of a project which were allocated to him as part of the AA's teams, … was integrated into the AA's business, … and had a role similar to that of a professional employee'. The Ch D upheld this decision

It was held that, on the evidence provided, 'the nature and degree of the control by the AA under the hypothetical contract' pointed towards employment.

Comment

There have historically been several badges of trade which need to be evaluated in each case in deciding whether an individual is employed or self-employed, as follows:

• Can you send in a substitute?
• Does the person for whom you are working have control over your work and the way in which you do it?
• Do you work a set working pattern – ie fixed days/hours?
• Are you paid a fixed hourly/weekly/annual rate?
• Do you receive bonuses/overtime?
• Do you bear the financial risk for unsatisfactory work?
• Do you provide the plant and equipment necessary to do the job?
• Would work normally be quoted for on a fixed price, regardless of how long it may take?
• Do you decide the timetabling for carrying out jobs?
• Do you have to correct unsatisfactory work in your own time and at your own expense?
• Do you work for a number of different 'customers'?

Each of the above factors needs to be considered and each case would need to be decided on the balance of factors.

In the Dragonfly case, the importance of being able to send in a substitute to do the work and the amount of control that the 'customer' was able to exercise were highlighted.

HMRC has an Electronic Status Indicator (ESI) to establish whether, on the balance of the facts, an individual should be treated as employed or self-employed.

Subject to certain conditions, you can rely on the ESI outcome as evidence of a worker’s status for tax/NICs/VAT purposes.

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