NHS regulator faces IR35 legal challenge

A legal challenge against the implementation of April’s IR35 changes by NHS Improvement has reportedly been launched by medical professionals.

On behalf of two of its member unions, the Independent Health Professionals Association was yesterday said to be taking the NHS regulator to court over ‘unfair treatment’ and ‘financial damage.’

The IHPA also accused NHSI of an “unlawful” blanket application of the April off-payroll rules, which it alleges has led to income losses for its members of up to 50 per cent.

Such a universal application of the rules hit in March, when instead of taking “reasonable care” to individually probe each PSC to see which of them was caught, NHSI deemed all as caught regardless of their individual working practices.

An admission by NHSI that this stance was not an “accurate” interpretation of the legislation followed in June, alongside new guidance to NHS trusts on how to individually assess the IR35 status of their PSCs.

But the medical worker unions LDU and HPU allege that the regulator is continuing to encourage trusts to automatically find contracted NHS workers to be within the rules.

“Our members are reporting instances of IR35 being applied without the necessary assessments of individuals workers’ status,” the LDU said in a statement to OnMedica.

“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.”

Editor’s Note: Related –

Contractors’ Questions: Is my NHS agency right to deduct employer’s NI?

Contractors’ Questions: What to make of NHS’s blanket IR35 decision?

PSCs to abandon NHS IT project over IR35 changes