The National Audit Office's 'Investigation into the BBC’s engagement with personal service companies' reveals that the BBC thinks many of its workers have a special employment status and, it has financially compensated some freelancers for their extra costs of IR35.

The NAO investigated 'the nature of, and associated issues related to, individuals hired by the BBC on a freelance basis, particularly those hired through personal service companies (PSCs).'

Historically, the BBC had a policy of engaging staff via PSCs. Following the introduction of the Offpayroll Working rules in 2017, it has both changed its policy in relation to hiring freelance on-air talent and the way in which it tests employment status. HMRC’s CEST tool has sometimes provided results different to the outcome of the tests historically used by the BBC.

NAO key findings

HMRC is consulting with the media industry about the employment status of freelancers with a view to updating its employment status manual and associated CEST guidance. This will replace the radio industry guidelines and the television, film and production guidance notes, and the BBC hopes it will set out clearly those on-air and off-air roles it deems to be employed and those self-employed, thereby reducing the need to use CEST. In July 2018, Deloitte submitted an industry-wide response to HMRC’s approach.

Ex-gratia and disputes

In June 2018, the BBC announced an ex-gratia payment of up to £500 to anyone earning less than £45,000 a year from the BBC as a contribution towards additional book-keeping fees arising from the IR35 compliance changes. By August 2018 it had paid out almost £12,000 on 33 claims.

In March 2018, the BBC announced its intention to set up an independent mediation process under the supervision of the Centre for Effective Dispute Resolution (CEDR). This aimed to determine the right approach in cases relating to before April 2017 where individuals who were hired through PSCs believed that the BBC bore some responsibility in relation to HMRC’s demands for employer’s national insurance contributions from their PSC, because, they claim, they had received misleading or limited information from the BBC. The BBC has yet to finalise the details of this process as it is exploring other options for resolution. In May 2018, the BBC approached HMRC to discuss the possibility of an alternative approach, which potentially offers advantages over the above mediation process, for example, in terms of the amount of BBC management time involved. Discussions are still ongoing.

Useful guides

Employment Status
Track case law, developments to the CEST tool and run through the employment status checklist.

Off-payroll rules for the public sector
A guide to the statutory provisions that move the responsibility to assess a contract under IR35, and deduct PAYE and NICs from the worker to their public sector engager.

Personal Service Company (PSC)
A guide for PSC owners and their tax ules

IR35
The IR35 tax rules may apply when a worker supplies his personal services to a private sector engager through an intermediary trading vehicle such as a company or partnership.

External links

NAO: Investigation into the BBC’s engagement with personal service companies