travel to a temporary workplace?

[RemoteContractor]

I have been offered a short-term "inside IR35" engagement for 6 months which I understand is akin to an employment, I need to use an Umbrella company. The circumstances of the engagement are the work will mostly be carried out in Belfast with "occasional" travel to a site in London. The client wishes to pay a daily rate only and neither client nor Umbrella are willing to re-imburse me the expenses incurred for any trip to London. Umbrella is telling me to claim from HMRC via P87 which would leave me out of pocket for some time, and I understand a complete loss of NICs which cannot be claimed via P87.

My view is that the occasional travel to London is travel to a temporary workplace and is fully deductible, including disregard for NICs as per HMRCs own example 2 ESM5590 https://www.gov.uk/hmrc-internal-manuals/employment-status-manual/esm5590

I would like to ask the learned folks of this site however, when does a seemingly temporary workplace become "permanent" in the eyes of HMRC? It seems that 40% attendance or more over a 24month period is used by HMRC as a guideline, see "ordinary commuting and permanent workplaces" here: https://www.gov.uk/government/publications/employment-intermediaries-travel-expense-guidance/travel-and-subsistence-expenses-for-workers-engaged-through-employment-intermediaries-from-6-april-2016

FInally, once an answer has been formulated for above, if the occasional trip to London is less than 40% of the working time over a 24 month period, does it matter if the Belfast location is my home or not? I would argue not, but the whole Umbrella industry seems to disagree with me stating that "home to site expenses are not deductible under any circumstances".

[darthblingbling]

If it's regular attendance for the life of the contract then this itself could fall under the fixed term rules. (I.e. if you're expected to be at the London office once a week for the life of the contract, although it's under 24 months/40% it can still fall foul)

If it was ad hoc travel, requested by the business as and when the specific need arose I'd be more comfortable with it being deemed a temporary workplace.

Sounds like it's the latter, I'd perhaps push back if you're going to be out of pocket.

[someone]

Watch out as well that "occasional " while you're negotiating might be made out to be a couple of trips while once you've signed might end up being "most weeks".

Also will your trips need to include an overnight stay? "We need you to attend this client do" that finishes at 9pm might mean there's no way to get a flight back same day.

And will they need to be booked last minute? February last year I had to make a last minute, same day return trip to Dublin and there was no change out of 500GBP for the flight (cheapest available) and it was borderline for public transport to Heathrow too (remember the costs to and from the airports at each end, especially if it's unsocial hours)

The big advantage of "client pays" is that they won't ask you to do it unless they really need it. You pay and they might ask for it "just in case" and you'll end up spending time in London on visits where you didn't need to be there at all.

[RemoteContractor]

Darthbling, quick search on the fixed term rules lead me to this: https://www.gov.uk/hmrc-internal-manuals/employment-income-manual/eim32125 where it states:

"You should not normally challenge relief under this paragraph where the likely duration of work at a workplace is less than 80% of the likely duration of the employment." If I understand this correctly one day a week at a secondary site would NOT be excluded under the fixed term rules?

I have also seen HMRC guidance stating that "normally an employee only has one main, or permanent, place of work which is usually obvious from the facts".

In my case, and with a lot of "mostly remote" workers, the contract is clear that the main place of work is our home, with occasional travel to secondary site.

I note that HMRC like to relay on Kirkwood v Evans https://www.gov.uk/hmrc-internal-manuals/employment-income-manual/eim32137 as in that case one day per week at a secondary site was held to be "travel to a permanent workplace". I will need to read the details of the case to find the specifics as I am always wary of HMRC picking judgements they like that had very specific facts but holding them out as applying to the general case. From the summary it seems the reason for the attendance at the secondary site is important and must be "limited" which creates significant uncertainty in an area which should be easy to clearly define.

[RemoteContractor]

Someone, "client pays" is obviously ideal, but most clients are stuck in the mindset of not paying extra for expenses, as in the previous world of mostly Ltd company engagement the client just pays a daily rate and the Ltd pays for business travel as needed. Asking for expenses on top, or for the client to do expense reimbursement directly before payment is sent to agent/Umbrella seems to be the only solution.

[RemoteContractor]

re: Kirkwood v Evans https://swarb.co.uk/kirkwood-inspector-of-taxes-v-evans-chd-25-jan-2002/

The key facts leading to the decision that "travel one day a week to a location is travel to a permenant workplace" is because Mr Evans previously worked in Leeds, it was his perm place of work before he decided to avail of voluntary WFH policy. The Court simply held that availing of the voluntary policy did not change his perm work location.

This example would NOT be applicable to the circumstances of a mostly remote worker specified via contract, which would be a contractual obligation rather than voluntary. In my view, unless I am missing something, it is clear cut that occasional travel to London is fully deductible, as long as the contract is clear where the main place of work is, and either contract or facts support that any attendance at a secondary site would be "limited" in nature and not more than 40% of working time in a 24month period.

You have been very helpful so far guys, again, over to you in case I may have missed something?

[bd6759]

You’ve missed the meaning of temporary workplace.

s339 ITEPA 2003
(3)In subsection (2) “temporary workplace”, in relation to an employment, means a place which the employee attends in the performance of the duties of the employment—

(a)for the purpose of performing a task of limited duration, or

(b)for some other temporary purpose.

Your obligation to attend the office needs to be for a task of limited duration or for a temporary purpose. That obligation seems to be part and parcel of your job.

[someone]

Someone, "client pays" is obviously ideal, but most clients are stuck in the mindset of not paying extra for expenses, as in the previous world of mostly Ltd company engagement the client just pays a daily rate and the Ltd pays for business travel as needed. Asking for expenses on top, or for the client to do expense reimbursement directly before payment is sent to agent/Umbrella seems to be the only solution.

I understand - I was more commenting on the fact that if you factor in 3 visits to London into your rate and then end up making 20 the contract might not be worth it at all. If the client says "occasional" then they ought to be able to agree a limit on the number of trips above which they'll pay your expenses. If they won't agree to that then that would feel like a red flag to me.

Alternatively, factor in a once per week "occasional" visit into your rate and sit pretty if they only ask you to make three visits.

[RemoteContractor]

bd6759 - are you aware of any case law as to what constitutes a "temporary" purpose? Are the waters not muddied here because my employment is with an Umbrella company and technically they are sending me to a client site "temporarily" simply because the client has asked for this? I stuggle to think of any examples where a business could say to their client "no, you need to be specific as to why you need our guy on your site", the answer is simply that customer is King, and they get to request what they like.

What a bizarre situation that a temporary contract, asking for attendance at a temporary location for less than 40% of the contract, might not be regarded as "temporary" because the "purpose might not be temporary".

This smells like HMRC as usual creating layers and layers of complexity, falsehood upon falsehoods defined in law as truth, where we end up in a bizarre twilight zone arguing about what is or is not "temporary" just so they can grab PAYE from everyone.

Any reasonable man would say that 1-2 days per week in London, when the main place of work is Belfast, under a 6 month contract, is all clearly temporary.

I digress, any case law on the topic at all?

[RemoteContractor]

You’ve missed the meaning of temporary workplace.

s339 ITEPA 2003
(3)In subsection (2) “temporary workplace”, in relation to an employment, means a place which the employee attends in the performance of the duties of the employment—

(a)for the purpose of performing a task of limited duration, or

(b)for some other temporary purpose.

Your obligation to attend the office needs to be for a task of limited duration or for a temporary purpose. That obligation seems to be part and parcel of your job.

Where significant travel is needed, businesses typically send their employees for a full day or more. I struggle to think of any example where a business would send an employee on a significant journey for a single task, come home again and then go the next day for another singular task, just so that "temporary" workplace defination could be met. No, the trip would be for a necessary duration and to carry out as many tasks as necessary.

One of my previous employers would regularly send staff to the US for a full week or two at a time. Quite clearly, the whole trip is in fact both "limited duration" and for a "temporary purpose" but I am sure HMRC have argued otherwise.