The Court of Appeal has, unfortunately, rejected Adecco’s appeal against the adverse decisions in both the First-tier Tribunal and the Upper Tribunal, regarding whether VAT is chargeable on the staff remuneration element of a payroll charge made via a staff agency/bureau. I commented on the Upper Tribunal decision in March 2017, and there is little more to add to the reasoning in that commentary.
The Court of Appeal followed the same basic line, which was that the written terms of the contracts could not be overridden by reference to ‘custom and practice’ in the operation of the supplies.
However, where the Upper Tribunal had skirted around the question of a potentially confusing precedent – Reed Employment – the Court of Appeal dealt with this head-on. Whilst the Court made clear that the contractual arrangements, and therefore the facts applicable to the current case, were different to Reed, and this alone would decide the case against Adecco, the original Reed decision was wrong in any event.
The unhappy fact is that it was only this Reed decision which had caused Adecco to take a case on its own arrangements. Had Reed been differently decided, the litigation is unlikely ever to have been embarked upon. In fairness, the First-tier Tribunal had made clear its own disagreement with the Reed decision, but, presumably, the Court of Appeal felt that it should be reiterated to avoid further attempts by litigants to take advantage of it.
We understand that Adecco has decided not to appeal the adverse decision of the Court of Appeal, and that, consequently, this litigation has run its course.
This still leaves, then, a deeply unsatisfactory state of affairs whereby, because of the introduction of various employment regulations which caused the whole contractual basis of providing self-employed temps to charities (and others) to change in response, a massive VAT disadvantage to this form of flexible employment structure has been created, in such a way as to amount to a restrictive practice, particularly of disadvantage to the charity sector.
The Courts may have made the application of the law clear, but it is now down to the politicians to consider whether changes should be made which can rescue the law from these unintended consequences.
Graham Elliott is Technical Adviser to the Charity Tax Group and Director of City and Cambridge Consultancy.