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NHS Regulator Faces IR35 Legal Challenge

Posted on 24.11.2017
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Latest news reports that the Locum Doctors Union (LDU) and the Healthcare Professionals Union (HPU) have launched a legal challenge against the proposed IR35tax rules reform.
Both of these unions are members of Independent Health Professionals Association (IHPA), and are going to court with an aim to protect members from what they claim to be unfair and financially damaging treatment, whilst aiming to stop clinical staff losing 30-50% of their pay due to the “unlawful” sweeping application of the new IR35 tax rules.
 
Both LDU and HUP went to court in a bid to overturn NHS Improvement’s (NHSI) plan to ensure all healthcare contractors within the IR35, regardless of their situation. This would result in NHS Trusts being obliged to make case-by-case assessments for each locum healthcare worker to decide if each person is eligible to fall within IR35 tax rules.
 
The unions claim that locum workers have been penalised by NHS administration staff (who would perform the IR35 assessments), who often don’t have sufficient training or knowledge of recent guidance from NHSI. And as a result, many locum workers will face losing 30% to 50% of their income because of automatically being categorised within IR35.
 
LDU and HPU say that this is despite the NHSI having sent out guidelines to NHS Trusts and 2,500 healthcare professionals on how to hold assessments fairly.
 
Dr Benedict Itsuokor, president of the Locum Doctors Union, said: “The NHSI seem to have forgotten their obligations as per their representations in the pre-action protocol process. Following the u-turn in May, the feeling was that the fair and lawful implementation of IR35 within the NHS had been resolved amicably to all stakeholders’ satisfaction – NHSI was to recommend all Trusts consider each individuals workers’ status on a case-by-case basis, rather than blindly ruling all were within IR35. However, our members are reporting instances of IR35 being applied without the necessary assessments of individuals’ workers’ status.
 
In some cases, it seems to be more identifying the individual circumstances of those who are outside of IR35, rather than fairly considering everyone. Within certain Trusts, we are hearing that the only locum workers in the entire workforce who have so far been deemed to be found outside of IR35 are emergency staff such as out of hours GPs, whom the Trusts are required to employ and whom the NHS is extremely reliant on.
 
Itsuokor continues: “This is extremely disappointing, and leaves us with no choice but to proceed to judicial review.”
 

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