Employment & Payroll

There are a multitude of rules and regulations that you must be aware of when you employ someone from abroad who is coming to work in the UK.

HMRC’s guidance (entitled New employee coming to work from abroad) sets out some important issues to be aware of when taking on a new employee from abroad.

This includes the following:

• Check an employee’s right to work in the UK
• Paying tax and National Insurance contributions
• National Insurance contributions 
• Modified PAYE arrangements
• Payments
• Work done in and outside the UK
• Short term business visitors

UK employers must operate PAYE and NICs for employees from abroad regardless of whether they are working on a temporary or permanent basis. This also applies to seconded employees who are being paid by an overseas company. The UK employer is responsible for reporting earnings and PAYE deductions in the same way as for a UK employee.

New employees from abroad will not have a P45 so you will need to obtain all the pertinent information to set them up and report to HMRC on a Full Payment Submission (FPS). 

This includes their full name, gender, date of birth, full address and National Insurance number (if the employee knows it). The employer will also need a completed starter declaration and should enquire if the new employee has an existing student loan. 

There is a particular section of internal HMRC’s manuals that deals specifically with how to view the rules for measuring profits of specific trades. The list includes over 50 different trades as diverse as actors, athletes, barristers, bookmakers, motor dealers, care providers, doctors and dentists, financial traders, marine pilots, missionaries, pawnbrokers and subcontractors.

The section on actors and other entertainers states these people may be engaged under either a contract for services, the profits of which are taxable as professional profits, or a contract of employment, which is taxable as employment income.

Existing case law sometimes supports the view that individual contracts are not always contracts of employment.

HMRC's guidance states the following:

Accordingly, performer’s/artist’s earnings will be liable as the profits of a profession in many cases. The sort of engagement where an employment and PAYE may be appropriate, is more likely to be in circumstances where a performer/artist is engaged for a regular salary to perform in a series of different productions over a period of time, in such roles as may be from time to time stipulated by the engager, with a minimum period of notice before termination of the contract. This would apply for example to permanent members of some orchestras and permanent members of an opera, ballet or theatre company. An employment and PAYE would apply in these cases regardless of the receipt by the performer/artist of other income correctly chargeable as profits of a profession.

If you have been in the same job for two or more years and are made redundant you will usually be entitled to redundancy pay. The legal minimum that you are entitled to receive is known as ‘statutory redundancy pay’. There are exceptions where you are not entitled to statutory redundancy pay, for example, if your employer offers to keep you on or offers you suitable alternative work which you refuse without good reason.

The amount of statutory redundancy pay you are entitled to is dependent on your age and your length of service.

The payment is calculated based on the following:

• Under 22 – half a week’s pay for each full year of service.
• Aged 22 to 40 – one week’s pay for each full year of service.
• Over 41 – one and half week’s pay for each full year of service.

Weekly pay is capped at £571, and the maximum length of service is capped at 20 years. In addition, the maximum statutory redundancy pay you can receive is capped at £17,130 in 2022-23. There are slightly higher maximums in Northern Ireland.

Of course, an employer can decide to make a higher payment, or you may be entitled to one as a result of your employment contract.

There is an overall £30,000 limit for redundancy pay which is tax free, regardless of whether this is your statutory redundancy pay or a higher pay-out from your employer.

Most employers and employees are aware of the additional costs of providing company cars and the tax implications they create. However, for many employees the attraction of having a company car means that in spite of any tax disadvantages, this remains a popular option. There are circumstances where it can be possible to offer employees car benefits that are exempt from tax.

These include:

Cars available for business journeys only

This rule has been the subject of much case law over the years, but it has generally been established that to qualify for VAT recovery the car must not be available for any private use.

This means that the car should only be available to staff during working hours for employment related duties or to travel to a temporary workplace. The business must also clearly tell their employees not to use the vehicle for private journeys and check that they do not.

Cars adapted for an employee with a disability

These cars are exempt if the only private use is for journeys between home and work and for travel to work-related training.

Fuel paid for by employees

The fuel benefit is removed when an employee pays for all their private fuel use or if the employer pays and the employee reimburses the amount (during the tax year).

'Pool' cars

Employers are not required to pay or report on 'pool' cars. These are cars that are shared by employees for business purposes only, and normally kept on the business premises. Employers must ensure the ‘pool’ car rules are observed.

Privately owned cars

Employers do not have to pay anything on cars that directors or employees own privately.

Don’t forget to take advantage of tax-free trivial benefits. If you are an employer and looking to give your employees a small token of appreciation then your best option is probably to give them a gift. In order to ensure that this is not a taxable gift, it is important to ensure that the trivial benefits in kind (BiK) rules apply.

There is no tax to pay on trivial benefits in kind (BiK) provided to employees where all of the following apply:

• the benefit is not cash or a cash-voucher; and
• costs £50 or less; and
• is not provided as part of a salary sacrifice or other contractual arrangement; and
• is not provided in recognition of services performed by the employee as part of their employment, or in anticipation of such services.

So, for example a food gift that costs £45 would qualify as would a £15 bottle of wine. It is also possible to provide employees with a gift voucher (not a cash-voucher) where the value is £50 or less. It is important to remember that the gifts must not be provided in recognition of the employees’ services but merely as a gesture of goodwill.

There is an annual cap for directors of a ‘close’ company of £300 per year. If the gifts have a value of over £50 or cannot be counted as a trivial benefit, then the gift must be reported on form P11D and Class 1A NICs will be payable on the value of the gift.

A salary sacrifice arrangement is an agreement to reduce an employee’s entitlement to pay, usually in return for a non-cash benefit. The tax and NIC advantages of certain benefits provided as part of a salary sacrifice arrangement were removed from 6 April 2017. The change removed the income tax and employer NIC advantages of certain benefits provided as part of salary sacrifice arrangements such as mobile phones and workplace parking. There was a transitional plan in place for certain benefits that ended on 6 April 2021.

The following benefits are currently not subject to Income Tax or National Insurance contributions and do not have to be reported to HMRC:

• payments into pension schemes;
• employer provided pensions advice;
• workplace nurseries;
• childcare vouchers and directly contracted employer provided childcare that started on or before 4 October 2018, and
• bicycles and cycling safety equipment (including cycle to work).

If an employee wants to opt in or out of a salary sacrifice arrangement, the employer must alter their contract with each change. The employee’s contract must be clear on what their cash and non-cash entitlements are at any given time.

It may also be necessary to change the terms of a salary sacrifice arrangement where a lifestyle change significantly alters an employee’s financial circumstances. This may include marriage, divorce and a partner becoming redundant or pregnant. Salary sacrifice arrangements can allow opting in or out in the event of lifestyle changes like these.

Employees who work from home may be able to claim tax relief for bills they pay that are related to their work.

Employers may reimburse employees for the additional household expenses incurred through regularly working at home. The relief covers expenses such as business telephone calls or heating and lighting costs. Expenses that cover private and business use (such as broadband) cannot be claimed. Employees may also be able to claim tax relief on equipment they have bought, such as a laptop, chair or mobile phone.

Employers can pay up to £6 per week (or £26 a month for employees paid monthly) to cover an employee’s additional costs if they have to work from home. Employees do not need to keep any specific records if they receive this fixed amount.

If the expenses or allowances are not paid by the employer, then the employee can claim tax relief directly from HMRC. Employees will receive tax relief based on their highest tax rate. For example, if they pay the 20% basic rate of tax and claim tax relief on £6 a week, they will receive £1.20 per week in tax relief (20% of £6). Employees can claim more than the quoted amount but will need to provide evidence to HMRC. HMRC will accept backdated claims for up to 4 years.

Employees may also be able to claim tax relief for using their own vehicle, be it a car, van, motorcycle or bike. As a general rule, there is no tax relief for ordinary commuting to and from the place of work. The rules are different for temporary workplaces where the expense is usually allowable or if an employee uses their own vehicle to undertake other business-related mileage.

Note, that if an employee agreed with their employer to work at home voluntarily, or they choose to work at home, they cannot claim tax relief on the bills they have to pay. If an employee previously claimed tax relief when they worked from home because of coronavirus (COVID-19), they might no longer be eligible for relief.

The letters in your tax code signify your entitlement (or not) to the annual tax-free personal allowance. The tax codes are updated annually and help employer’s work out how much tax to deduct from an employee’s pay packet. 

The basic personal allowance for the current tax year, which started on 6 April 2022, is £12,570. The corresponding tax code for an employee entitled to the standard tax-free Personal Allowance 1257L. This is the most common tax code and is used for most people with one job and no untaxed income, unpaid tax or taxable benefits (for example a company car).

There are many other numbers and letters that can appear in your tax code. For example, there are letters that show where an employee is claiming the marriage allowance (M) or where their income or pension is taxed using the Scottish rates (S). The basic rate limit for 2022-23 is £37,700 except for those defined as Scottish taxpayers who have a lower basic rate limit as well as an intermediate rate. If your tax code numbers are changed this usually means your personal allowance has been reduced.

There are also emergency tax codes (W1 or M1) which can be used if a new employee doesn’t have a P45. These codes mean that an employee’s tax calculation is based only on what they are paid in the current pay period.

If your tax code has a 'K' at the beginning, this means that deductions due for company benefits, state pension or tax owed from previous years are greater than your personal allowance. However, the tax deduction for each pay period can’t be more than half your pre-tax pay or pension.

It is important to check your tax code to ensure the correct information is being used. If you have any queries we can help, or you can check with your employer or HMRC.

Company directors or any other person who has been appointed to a position by a company or organisation but doesn’t have a contract or receive regular payment as office holders are neither employees nor workers.

Company directors who also have an employment or worker's contract can be both an office holder and an employee at the same time. If this is the case, the director would need to be paid the relevant National Minimum Wage (NMW) or National Living Wage (NLW).

If there is no employment contract or other evidence of an intention to create an employer/worker relationship for a company director, then the NMW / NLW minimum rates will not apply. A contract of employment can be written, expressed orally or implied.

The directors would only be covered by the NMW / NLW if they were also defined as a worker in the relevant Act.

A worker is defined in the National Minimum Wage Act 1998, section 54(3) as someone who has entered into or works under (or, where the employment has ceased, worked under):

• a contract of employment; and
• any other contract by which the individual undertakes to perform work or services personally for someone else (unless the individual is working on a genuinely self-employed basis for a client or customer).

Careful consideration needs to be given especially to directors of personal service companies to ensure the correct tax treatment is in place whilst at the same time complying with employment law and minimum wage legislation.

There are a multitude of rules and regulations that you must be aware of when you employ staff.

HMRC’s guidance (entitled Employ someone: step by step) sets out some important issues to be aware of when taking on a new employee.

This includes the following:

1. Check your business is ready to employ staff – check whether you need to hire someone on a full time or part time basis.
2. Recruit someone. This includes advertising the role and interviewing candidates. You must also check that they have the right to work in the UK and you may also need to apply for a DBS check (formerly known as a CRB check) if you are working in a field that requires one, e.g., with vulnerable people or security.
3. Check if the new employees need to be enrolled into a workplace pension.
4. Agree a contract and salary. Send details of the job (including terms and conditions) in writing to your employee. You need to give your employee a written statement of employment if you’re employing someone for more than 1 month.
5. Tell HMRC about your new employee. You can do this up to 4 weeks before you pay your new staff. This process must also be completed by directors of a limited company who employ themselves to work in the company.