This article first appeared in issue 15 of The Echo magazine, published in June 2020.
This article is for general guidance only and is not a substitute for professional advice where specific circumstances can be considered. Whilst every effort has been made to ensure the information contained within this publication is correct, the author and the ASD does not accept any liability for any errors or omissions contained herein, or any action taken or not taken in reliance upon the information provided in these articles. As with all things relating to HMRC, multiple caveats and conditions apply to everything below.
We’ve looked at some of the benefits of being self-employed, and of working as a limited company, in previous issues of The Echo. But we’ve never looked at being an employee, and how these types of employment compare to each other. Nationally, the UK workplace is changing too, with the rise of zero-hour contracts and the gig economy. And with Coronavirus lockdown, and the launch of government income support schemes, some of our notions about which is the best form of employment have been turned on their head. Coronavirus will impact our private and professional lives for a few years at the very least, so this feels like an appropriate moment to look at financial aspects and employment rights of how we are employed, and indeed, how some of us often misclassify ourselves.
It’s important to remember as you read through this article that employment law, the rights you have under employment law, and your status under tax law do not always align logically.
This is a bit of a deep dive, and full of technical information. To help you make it through the article, we have also included some photos of cute animals.
The main types of employment
Being a full-time or part-time employee of a company is what many consider to be the traditional method of being employed. Those of us who work for theatres, for a venue, may be on a full or part time contract of employment. Those of us who work on shows are more likely to be employees on a fixed term contract, or a rolling contract, depending on whether the show is anticipated to have a short or long run. There are many benefits for the employee to both these forms of employment, from tangible benefits like holiday pay and pension schemes to less tangible benefits such as a sense of security and the ability to predict one's income. There are very firm rights for employees under employment law, which protect them from unfair dismissal, mandate sick pay and redundancy pay, amongst others.
I spoke with Ollie Young, currently head of sound on Harry Potter and the Cursed Child at the Palace Theatre, London.
“I prefer being on a PAYE contract to being freelance. Even on a short run show there is usually a sense of financial security, which enables me to plan my life. I really enjoy my job, being a No 1 Sound Op, and I get a sense of satisfaction from seeing a show through from its first preview to its last night. Producers often seek that from an employee, someone they can count on to really look after the show. And they often reward that by offering you work on their next show.”
What are the difficulties of being employed?
“It can be difficult to take the holiday you are entitled to on a short run. For a smaller show that has a limited run of, say, 5 months you might accrue 2 weeks of holiday. If you take that in the middle of the run you end up missing a significant chunk of the run, and a lot can happen in that time. And your holiday cover is up to you, the employer doesn’t arrange it, you have to find cover and you have to train them. It can be frustrating, you may not have built up a roster of people who could dep in for you, who are really familiar with the show and the politics of the company. So whilst no-one will say anything, producers are keen for you to wait until after the show has finished, and take your holiday then. On a show with a larger department, or with a longer run, that’s usually easier - but even then we have to judge when we take holiday around the other people in our relatively small department, and any other staff changes or re-casts that are happening.”
Some people also do freelance work on top of their employment. Is that something you do?
“I did it a bit when I first started out. But it was stressful. I notice that a lot of freelancers are constantly on the phone, talking about dates, trying to sort out their next gig. That never really appealed to me. Another advantage of being employed is that it was easier to get a mortgage, so when I bought my flat I spent my free time doing that up, and making it worth more when I eventually sold it. I was then able to do the same with our last house. That’s obviously not something that I’ll reap the rewards of until later on in life, but financially I hope that it will prove better in the long run."
As Ollie says, employees typically find it easier to get mortgages, or to re-mortgage, and often may be offered a lower rate of interest. Other lines of credit are also easier to access too.
For the employer there are many benefits too, there is a direct line of accountability between employer and employee, as well as a degree of certainty that an employee is in it for the long term, as much as we can talk about that in our industry. For employers whose focus is profit, these benefits may outweigh the cost, and certainly employees are expensive for employers. For example, for an employee to take home £650 per week, the employer will have to pay out £1021, which includes the employer NI (£98), employee NI (£86) and tax (£132), employer and employee pension contributions (£55). And that’s before holiday pay, and potentially sick pay and maternity/paternity costs are factored in too. An employee is more likely to have a more secure contract, union representation and collectively bargained agreements, which makes it harder for an employer to fire or renegotiate the terms of employment; or to rapidly expand or contract the size of their workforce. Outside the theatre industry, we see employers moving away from this model, with companies like Sports Direct using zero hour contracts (where the employees are on a similar contract as an employee, paid by the hour, but without any commitment from the employer to provide them with hours to work), or Uber arguing unsuccessfully that its drivers are freelancers rather than employees. Fortunately, in theatre we’ve seen very little of those sorts of moves.
One key benefit of being employed is the sheer simplicity of it - your pay arrives and all the tax and NI has been calculated and paid to HMRC. You have a clear idea of your income and it will likely remain fairly constant over the course of the year, with no nasty surprises as the end of the financial year. As we’ll see, self-employment and personal service companies may have financial benefits, but they come with a degree of complexity, and require financial planning and knowledge.
This form of work is most common for people who work by the day, or across multiple projects and employers, which covers a vast array of job titles. We’ve covered the nitty gritty of being freelance in detail here. In essence, the freelancer negotiates a rate or fee, and a “contract for services” with a company, and the company has no financial commitments beyond the negotiated amounts. The freelancer is solely responsible for making tax and NI payments to HMRC, through filling a self-assessment form each year. Self-employed people have very few rights under employment law: there is no sick pay, holiday pay, pension contributions, there is no right to claim unfair dismissal or take maternity or paternity leave, unless these things have been specifically negotiated for in a contract, which is very rare in the UK.
For an employer to bring on a freelancer for £650 per week, the employer would only pay £650 per week, rather than the £1021 for an employee. Typically a freelancer might expect to receive what on the surface might appear to be a higher wage than an employee for doing the same role, but this hides the fact that the freelancer will have to pay income tax and NI, and cover sick days, holidays and pensions through their earnings, as well as the cost of equipment and other expenses. A freelancer would need to be paid £915.50 per week in order to receive £650 per week once they’ve set aside 20% for income tax, 9% for Class 4 NI, and paid £3 per week in Class 2 NI. This is a slightly rough calculation as personal allowances and NI thresholds mean that you might only pay 25% of your income towards tax and NI, but that is something you can only calculate at the end of the year, which makes it risky to save less than this. Freelancers can also deduct a range of their outgoings to reduce the amount of tax and NI they pay, though HMRC is strict about what can and can’t be deducted. Employees cannot claim expenses against their tax and NI (though some companies allow specific expenses to be claimed in the course of work). An employer is more likely to provide the premises and equipment required to do an employees work, and less likely for a freelancer. Freelancers find it harder to obtain mortgages and credit than employees, and are often required to present 2 to 3 years of tax accounts, certified by an accountant, to prove their sustained income level. This can obviously prove challenging the early years and has also proved problematic for people who have held a full-time post for many years and then gone freelance, only to discover they can’t then move to a new house because they don’t have any accounts to back up their mortgage application.
Another key distinction between being employed and being freelance is that as a freelancer you pay tax and NI according to HMRC’s schedules, which means they need to carefully save the correct amounts, and pay HMRC, along with the correct forms at the correct times. This is onerous, and requires a chunk of time, or to spend money on any accountant to figure it out, or to invest in software that can manage it. Accountants are very useful for this and typically may only charge a few hundred pounds for a self-assessment return - but crucially they can often save you considerably more than that by advising you, which is especially useful when you are just starting out and don’t fully understand the system. There’s a range of software out there, such as Freeagent [10% discount referral link], allowing you to manage your bank account, allocate costs to categories, issue and track invoices, and many of them can submit your self-assessment (and VAT if you choose that too) to HMRC for you.
VATBeing VAT registered is completely separate to your employment and tax status, and both freelancers and businesses can be VAT registered, but not employees. Find out more about when you must become VAT registered, and the benefits of it, here.
Are you self-employed or an employee?
The ASD occasionally receives emails from members who are normally freelance but are being required by their client to be taken on as an employee on a short term contract, with their earnings taxed under the PAYE scheme, and with NI deductions taken. This can cause consternation that this will result in financial loss. It is clearly beneficial to be on a fixed term contract in terms of employment rights. Financially, when you calculate your self-assessment you are asked (in the Employment section) to declare how much you’ve already paid via PAYE, and so you pay correspondingly less income tax and Class 4 NI, so in the long run you shouldn’t lose out financially on that front. But of course, the extra tax and NI is still deducted from your wages, meaning you have less in your pocket to spend in the moment, which can be tricky if finances are already tight. Additionally, whilst you are in PAYE employ you can’t claim back expenses relating to that work. Those can be considerable, and it can get complicated if you have regular business costs like premises hire or a business mobile phone contract.
HMRC specify that technicians are normally PAYE earners unless specific circumstances dictate otherwise. HMRC says that: “Someone is probably self-employed and shouldn’t be paid through PAYE if most of the following are true:
The “what, where, when and how” part of this is important - and this is referring to the work you are being paid to do, not to your work in general. But there are certainly times when this outline isn’t conclusive. HMRC provides an online tool to help you determine your correct employment status, and HMRC say they will honour the outcome of this tool. www.gov.uk/guidance/check-employment-status-for-tax.
It is worth bearing in mind though that the tool has received considerable criticism and has apparently “been shown to return the wrong outcome in the most straightforward of employment status cases”. tinyurl.com/asd-cest-tool
But are you really a worker?
We often may refer to ourselves as self-employed which may be true for our tax status, but not for our employment rights. There is a further category known as a worker. The key difference between a worker and being self-employed is whether you are personally being employed to fulfil work. Or to put it another way, do you have the right to send in a substitute to do your work if you can’t, or don’t want to? If the arrangement is with you personally, then you are a worker and not self-employed for the purposes of your employment rights. This is important because you are then entitled to many additional rights, such as annual leave and sick pay. Confusingly you may be self-employed for the purposes of tax, but a worker for the purposes of employment law. You can work out whether you are a worker using HMRC’s guide here: https://www.gov.uk/employment-status/worker
Increasingly, freelancers are setting themselves up as small businesses, predominantly as limited companies. These offer marginal financial benefits for higher earners, which HMRC are often trying to diminish. We took a deep dive into this at tinyurl.com/asd-limited. For our purposes, you are typically an employee of your own company, so the company employing your company has little to no obligation to you, as they are not employing you at all - they are contracting your business to provide a service. The contract negotiated between the two businesses can encapsulate many aspects of how those services are provided, and what happens if things go sour. Tax wise, your company will be paid what you have negotiated between yourselves, and your company will have to pay corporation tax on the profits you make - currently 19%. Once the money has been paid to your business, company directors typically pay themselves using two methods. Firstly, as an employee of the company, your company would typically pay you a small PAYE salary, typically either just below, or at, the minimum threshold at which tax and employee and employer NI is deducted. Secondly, as a shareholder, the company would pay you a dividend, which doesn’t have NI deducted, and is taxed at only 7.5% (remember, it’s already had 19% corporation tax deducted from it). For many people, this may financially be similar to being self-employed. But for people who earn enough to be in the higher rates of income tax as a freelancer they might pay less tax as a limited company. A limited company is administratively much more complex to than being self-employed, and requires an accountant to submit audited accounts to Companies House, which is more costly than preparing a self-assessment.
I spoke to Tom Lishman, who started off as a freelancer and became a limited company.
“I converted into a limited company in 2003 when the Labour government encouraged freelancers to do so with tax incentives, as HMRC felt it would be easier to police us as a workforce. Those incentives were removed after a couple of years, and HMRC have been progressively reducing the benefits ever since. However, it is still advantageous to work as a Personal Services Company (PSC), as it creates a clear delineation between your personal finances and your company finances, and between your company and your client. Apart from the extra administration involved there hasn’t been a disadvantage of being a limited company. I always felt that having my own company made me seem more legitimate and established - although recent events regarding coronavirus support have proved me wrong!”
“Increasingly, clients are insisting we form our own limited companies, and won’t employ self-employed freelancers. This is happening in the corporate sector, in Film and TV, and with the BBC, and is creeping into the theatre sector, with another large hire company recently announcing they would not engage the self-employed anymore.”
There are a number of reasons for this shift. There is the issue of liability - who is responsible, and who pays (or whose insurance pays) when something goes wrong. It’s hard for a company to pass the buck if it’s to a freelancer they’re employing, but a lot easier to pass it on to their sub-contracting company. A company can significantly reduce their employee and public liability insurance costs if they replace all their freelance contractors with separate companies who each hold their own insurance policies.
But a huge shift has occurred recently in response to the changes to the IR35 regulations that were due to come in this April but have now been deferred to 2021.
IR35 are HMRC’s rules that endeavour to ensure that individuals who provide services to a company pay the same tax and NI as an employee would. They were initially aimed at the IT industry where individuals were only working for one client but claiming the benefits of being self-employed. HMRC’s view was that the employers were avoiding paying employer’s NI and providing employee benefits by doing this, and the individuals were paying less tax. The 2021 changes to the regulations would change who determines the workers employment status, i.e. does the worker meet the “what, when, where, how” and other criteria that would normally apply to a freelancer. Currently, you decide. In the future, each of your employers will decide on a project-by-project basis.
The financial and legal liability is also moved to the employing company. If they wrongly classify someone as exempt from PAYE, HMRC will require them to pay the additional income tax and NI rather than the worker.
It was expected that vast swathes of people who had previously worked out of a personal services company, would be forced to be paid on a PAYE basis, and would not be able to claim any relevant expenses against tax, consequently losing a large chunk of their income. Perversely, whilst being taxed as if they were an employee, they still would not receive holiday pay, sick pay or pension contributions.
To take a hypothetical example, you have negotiated a fee of £5,000 for a job, which is then deemed to be within IR35. So, you will have £1,000 tax deducted, and £421.66 Class 1 NI deducted, leaving you with £3,578.34. Now, just as with our freelancer who was pulled into the payroll earlier on in the article, you can factor these outgoings into the self-assessment a company director fills out each year, and you shouldn’t lose out. But, let’s imagine that you expect to run up £1,000 of expenses over the course of this project - you can’t claim these back as you can’t claim expenses against income as a PAYE employee. But you’re left with only £2,578.34 in your pocket from your initial £5,000. To add insult to injury you don’t get sick pay, holiday pay, or any of the employment rights an employee would have. By contrast, if the same job had fallen outside IR35, your £1,000 expenses would mean you would only be taxed on £4,000 profits, only £1,160, so you’d be left with £3,840 from your initial £5,000.
The changes to IR35 were instigated in the private sector in 2017 and caused havoc. Despite protestations from large businesses, and organisations like IPSE, HMRC have pressed ahead. In some acknowledgement of the pandemonium this change was going to cause, as the Coronavirus pandemic snowballed, they delayed its implementation for 12 months.
As we’ve discovered, employees are far more expensive for a business to employ than a freelancer, so businesses are not happy about these changes. In the above example, your employer will have had to pay 13.8% Employer’s NI contribution on your behalf and cover the administration costs of your payroll. But more than that, they don’t like being investigated and fined by HMRC. So already, many large businesses such as Barclays and Lloyds, have halted completely the use of external contractors, even if they can prove that they genuinely fall outside IR35.
Whilst in theatre it is already fairly commonplace for freelancers to be told they must go on the payroll, that doesn’t tend to happen for people who work out of personal service companies.
Tom “I think we’re increasingly going to see HMRC investigating us to see if we fall inside IR35 rules. Employers like the BBC already ask people to provide a list of equipment they will be supplying, to demonstrate one of the criteria that they’re exempt from PAYE. Increasingly theatre employers will want concrete proof from us - for every single job, as every single job has to be assessed whether we should be PAYE or not. We’re going to need to re-examine some of the terms of how we’ve been employed in the past to ensure we don’t fall into the grey areas, where employers push us into being on the payroll to play it safe. The wording of each contract will become really critical.”
“The rules regarding employment change regularly, and it’s critical to have an accountant as they keep track of all these changes. If you’re doing your own accounts and include calculations based on the wrong rules, HMRC are more likely to notice you, and investigate you. HMRC need to cover the costs of their investigations so they will try very hard to find where you owe them more money.”
WORKING ABROADWorking abroad can typically be divided into two categories: when you (or your company) are working abroad for a UK employer, and when you are working abroad for a non-UK employer. So long as you are not out of the country for too long, working for a UK employer means you will likely be paid in Sterling, and be subject to UK employment rights and tax laws. If you are working for a non-UK employer, things get more complicated as you then have to also consider how local laws for businesses and employees interact with UK law. We are touched on some of this in our Working in the USA article in issue 14.
As a UK freelancer working in, for example, Germany, for a German employer, there are multiple tax hurdles to overcome to avoid being taxed as both a German employee and a UK freelancer. This can often result in you not receiving payment for 3 to 4 months whilst the UK and German authorities send various forms around to be stamped. Instead, if you remain in the employment of a UK company, the German company pays for your services to that company. This applies equally if you work for a UK company employing you as a freelancer, or for your own limited company. These business-to-business (b2b) payments don’t involve the complexities of employment laws in different countries so require relatively little paperwork. It’s not all plain sailing though, some countries like France don’t allow royalties to be paid to a company.
Some people also set up additional companies in the USA to better deal with local tax, employment responsibilities and immigration policies there.
We’ve prepared some examples of how similarly paid roles might pan out in real life. It is very important to point out that these figures do not tell the whole story. Factors like being able to get a cheaper mortgage, job stability, etc, must also be considered.
You can see from the table a few things:
Table 1: Annual income vs Take home pay. Take home pay is calculated once all taxes and NI has been paid. These calculations do not include pension contributions. For the limited company, this assumes a salary just below the NI threshold of £8,788 per year is taken, with the majority of income drawn from dividends, and that all money is taken out of the company each year. A spreadsheet containing the full calculations is available here.
Impact of Coronavirus
As Coronavirus shut down our industry, and many others across the country, the government set up a variety of income support schemes for different types of employees. Initially the government offered full and part time employees 80% of their salary, up to a cap of £2500 per month - which works out as a maximum of £576 per week (£462 after tax and NI deducted!). It took a week of heavy petitioning, including from the ASD, for the government to realise that freelancers would also need support too. They did this with thinly veiled threats about making the world harder for freelancers after Coronavirus passes, whenever that might be, and reluctantly unveiled a package that would allow for freelancers to claim a grant of 80% of their average monthly trading profits, paid out in a single instalment covering 3 months, and capped at £7,500. To be eligible their profits (not income) must be less than £50,000 in the 2018-2019 tax year and must have traded during the tax year 2018 to 2019 (which ended on April 5th, 2019), and more than 50% of their income must have been through self-employment. For those who worked a mix of PAYE and freelance work, you may be eligible for one of the two schemes, or for neither, depending on the ratio of work, and when it happened. Notably, this grant is seen as income, so you may well end up giving 29% of it back to the government in tax and NI! After that, the £7500 becomes £5325, which works out as £409 per week. Self-employed people can continue to work and still claim under the income support scheme, and they can also claim universal credit.
Whilst these schemes provide welcome support for employees and established freelancers, those who have started out as freelancers after April 5th, 2019 can only claim universal credit, and those with limited companies receive very little support. As you’ll remember, limited business owners are technically employees so can claim under the furloughed employee scheme, but their PAYE income will typically be a small percentage of their income, and so the support is too, with most people likely to receive the equivalent of £135 per week. There are “bounce back” loans, which are interest and payment free for the first year, and whilst they are very low interest you will still need to pay them back.
Table 2: Furlough income support, per week, after tax and NI deducted. For the freelancer, the income is the average income over the last 3 years. For the limited company, this assumes a salary just below the NI threshold of £8,788 per year is taken, with the majority of income drawn from dividends. Other factors can affect the eligibility and extent of the income support schemes and grants, and it is unclear how long they will last for, or how they might change over time.
The government isn't providing support for dividend payments because they believe large companies will take advantage of it, and because HMRC claim they can’t confirm people’s income from the different dividends they might receive. They have said they have no plans to provide support for small business owners. Before the outbreak of Coronavirus, the financial advantages of being freelance or a limited company director, may seem to outweigh the benefits of being on PAYE, depending on your job and personal circumstances. However, the reverse is true in terms of support you might receive, with employees receiving almost £330 per week more in financial support than limited company directors or the newly freelance. Of course, it is of limited use to compare these numbers if the job you do falls squarely within one type of employment or another.
The different types of employment have different advantages depending on your income and circumstances. As table 1 demonstrates, the difference between salary or income and the actual take home pay is considerably different between PAYE and being either freelance or a limited company. But where they are further apart still is in terms of the responsibilities your employer has towards you, and nationwide we are rapidly moving towards employment methods where these are reduced. As this happens it’s increasingly important to ensure that the contracts we negotiate cover the eventualities we might face. And the things we don’t imagine will ever happen to us, like a global pandemic shutting down the entire industry for months and months.
We are still learning about the Coronavirus. We are learning that whilst it can be no worse than the flu for some, for others it can, often combined with secondary infections, leave people ill, and unable to work, for many weeks. We are still learning to what degree people who’ve had Coronavirus build up an immunity to having it again. The strategy of “flattening the curve” is not about stopping people from getting Coronavirus, it is about making sure people don’t all get it at once. Consequently, only a small percentage of the population have contracted it, and just as most people get a cold virus each year, we will be living with Coronavirus for many years to come. Now more than ever, it is going to be important to know about your rights as an employee, or as a worker, or as a freelancer, or company director. Crucially, if you can show that your employment is as a worker rather than on a self-employed basis, you may be eligible for sick pay if you need to self-isolate. If you can show you are self-employed (that you have the right to substitute your presence with someone else), this may help if you suddenly need to self-isolate and send someone else in to do your job. If there is a second wave of lockdowns in the future, and they exist in a similar form to now, how will the work you take on between now and then affect your eligibility for those schemes? Will the changes to IR35 change how you might be employed for future projects?
Many of us are often employed in various capacities on word of mouth, with “letters of agreement”, or with paper-thin contracts that are barely fit for purpose. Some companies are very responsible and issue detailed contracts that are really clear and effective. If your contract is shorter than four pages, it does not fall into the latter category. With the upcoming changes to IR35 the wording of our contracts will become critical to ensuring we are taxed correctly and fairly.
The majority of employment-related enquiries the ASD receives from members usually comes down to this conversation “What does it say in your contract?”, “It doesn’t say anything about this in my contract”. In these grey areas, there is room for arguments about money and responsibilities, and it is often members who find themselves losing money and, in the process, falling out with producers, a.k.a potential future employers. It is difficult when negotiating a contract to ensure that every eventuality is covered - and even the best contracts I’ve seen didn’t cover the eventuality of a pandemic.
On the ASD website, here, you can find an extensive list of clauses that your contract should contain, and how they might be worded. These include areas such as these: payment terms, what happens if the production is postponed or abandoned, liability and insurances, crediting and job titles. Design contracts might also cover ownership of content, clearance of music, subsequent use of a design, whether and how it can be modified. A classic clause that is missed from operator contracts is what happens if you terminate your contract early - who will pay for the crossover weeks when someone is learning the show from you. Whilst some of these clauses might be covered under agreements made by BECTU, Equity, SOLT, UK Theatre and others, many of those agreements were hammered out years ago when working practises were different to today. Unfortunately, the ASD is legally not allowed to develop a standardised contract that could be used.
In the coming months and years we are going to encounter more grey areas and bumpy roads than we’ve encountered in recent decades, and whilst we can face many of these challenges with a sense of community, with the ability to concede things that we wouldn’t normally to help our industry get back on track, there will also be times when we will need employment law to help us to make it through. As individual members it comes down to us to ensure that we are employed correctly, understand our employment rights and financial responsibilities, and can adapt this knowledge to deal with the times ahead.