Contractor wins IR35 appeal case against HMRC 24 May 2018
In the case of MDCM LTD v HMRC, the contractor has successfully appealed against HMRC when accused of being a ‘disguised employee’.
Construction News reports that Judge Ian Hyde found in favour of Mark Daniels and his company MDCM who were appealing HMRC’s decision to pursue him for PAYE and social security contributions. The tax body alleged that the nature of Mr Daniels’ work with fit-out and refurbishment specialist Structure Tone Limited (STL) via employment agency Solutions Recruitment Limited (SRL) meant he was effectively operating as a direct employee. Mr Daniels set up his company MDCM, of which he and his wife are both directors and employees, to offer the services in 2004. The court was told that in 2012 and 2013 Mr Daniels carried out night shift work for STL via the agency Solutions Recruitment Limited for a typical day rate of £310. There was a separate agreement between the contractor and agency at a higher rate of around £370. Mr Daniels said that during his time on site for STL he had followed the instructions of his site manager and managed the night shift, but was not invited to employee meetings. He also said that he paid for his own expenses for food, travel and accommodation. Mr Daniels added that he did not have a notice period and was not entitled to holiday or sick pay. HMRC argued that STL exercised a level of control over what work Mr Daniels carried out by specifying the exact tasks he must perform as night manager. It also contended that Mr Daniels should been classed as an employee because the contractor would not accept any substitute to replace him in his absence and because neither MDCM nor Mr Daniels incurred any financial risk as part of the arrangement.
Judge Hyde agreed that STL’s unwillingness to accept a replacement and the lack of financial risk did “point to an employment relationship”.
However, the judge rejected HMRC’s argument on the basis that Mr Daniels was paid a flat rate per day with no notice period or employment benefits, as well as because he was “not treated as an employee”.
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Unfair Dismissal and Discrimination 24 May 2018
The Employment Appeal Tribunal has ruled that dismissal for misconduct without prior warning is reasonable, even when multiple issues arise, none of which are by themselves, gross misconduct.
With thanks to Daniel Barnett’s employment law bulletin for providing this case summary.
Can a dismissal for misconduct without prior warning be reasonable when multiple issues arise, none of which are, by themselves, gross misconduct?
Yes, held the EAT in Mbubaegbu v Homerton University Hospital.
The Claimant was a consultant surgeon, of black African origin. The Hospital had introduced internal reporting procedures designed to address a dysfunctional working environment. The Claimant was dismissed for multiple alleged breaches, despite an unblemished career. His colleagues had also faced similar, less serious allegations and none were dismissed. The tribunal held the dismissal was fair, not discriminatory and not wrongful. There was no single finding of an act of gross misconduct by the Claimant. The tribunal accepted that trust and confidence had been undermined by the employee's conduct. The EAT noted that "it is quite possible for a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee" . It saw "no reason why an employer would be acting outside the range of reasonable responses were it to dismiss an employee in whom it had lost trust and confidence in this way".
The Chartered Institute of Payroll Professionals
Payroll: need to know
cipp.org.uk
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