unfair IR35 blanketing
unfair IR35 blanketing
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In May of this year, we obtained a major victory against NHS Improvement under the threat of a judicial review. Jim Mackie, the erstwhile head of NHS Improvement, had purported to direct that NHS locum workers were all inside IR35 regardless of their personal circumstances. NHS Improvement accepted our principal argument, namely that any such blanket approach was unlawful because it failed to allow an assessment of each contract. NHS Improvement issued guidance directing trusts to assess each contract on its own basis.
Sadly, the situation on the ground has not improved, and the vast majority of locum workers in the NHS are deemed to be inside IR35, irrespective of the circumstances of their contract. NHS bodies are simply ignoring guidance that has been issued by NHS Improvement. To make matters worse, the NHS is attempting to impose further caps or “pan London” rates to locum contracts.
This blanket imposition resulted in a loss of earnings to locum doctors, nurses and allied health professional of about 30% - 50%. We are taxed in the same way as our permanent colleagues without the benefits (including pension rights and sick pay) that come with it, and without the ability to offset the many thousands of pounds in liabilities that we incur (whereas permanent colleagues do not) in relation to travel, subsistence, accommodation, indemnity insurance etc. There are real concerns, in London especially, that locum workers are refusing to contract in the NHS and that there will be severe shortages as we head into winter. There is the real and present danger that patient safety and care will be put at risk.
IHPA is a Trade Association that represents doctors, nurses and allied health professionals working in the NHS. There is an alliance between the IHPA’s The Locum Doctors’ Union (LDU), an unincorporated association with the mission of supporting locum doctors to secure their rights by negotiation, mediation and litigation, as required, and The Healthcare Professionals Union which was formed on 11 May 2017 and whose mission is to support nurses and allied health professionals throughout the United Kingdom by providing pastoral, legal and HR support. These Trade Associations have united to seek remediation of these matters through negotiation and, if necessary court proceedings.
We are fundraising for two legal campaigns. First, we are seeking to run test cases against individual NHS Trusts that are refusing to properly assess locum colleagues to determine whether they are inside or outside IR35. Second, we are seeking to challenge, by judicial review, the cost capping and the pan-London cap.
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