If your business relies heavily on self-employed advisers, now might be a good time to start looking at alternative business models

The recent news of ex-rugby player Stuart Barnes, who lost an IR35 battle against HM Revenue & Customs (HMRC), leaving him with a £700,000 tax bill, made me think about the use of self-employed contracts in the adviser sector.

In response to the story, former financial planner Dave Robinson wrote on LinkedIn:

“Very interesting. I wonder how many self-employed financial adviser contracts would pass the test on this latest interpretation? And how many self-employed advisers are there? Surely, given the state of the public purse, it can’t be long before HMRC starts having a closer look.”

Self-employed advisers have an uphill struggle from the outset

As an employment lawyer working within financial services, the prevalence of self-employed advisers has always made me feel slightly uncomfortable.

It’s a model that is frequently used. Indeed, we regularly draft self-employed adviser agreements, advising on the employment status risks for employment and tax purposes, including IR35.

When looking at the test of employment status, self-employed advisers have an uphill struggle from the outset. There is normally a consultancy agreement in place which requires the adviser to provide services personally to a firm in return for remuneration.

In an industry built on relationships, it’s unlikely a client would accept any old person turning up to give them advice. It’s unlikely a firm would be happy with this arrangement either.

Control is also a problem. In a regulated industry where a firm’s own compliance with its regulatory obligations depends on its workforce complying with the Financial Conduct Authority’s requirements and its own polices and procedures, the “”what, when, where and how” boxes must be ticked.

As an employment lawyer working within financial services, the prevalence of self-employed advisers has always made me feel slightly uncomfortable

So, with mutuality of obligation, personal service and substitution and control out of the window – what next?

Well, it’s not all bad news. The self-employed adviser can normally carry out the work when they like and, because most are pay-away arrangements, there is no set amount of work required or fixed remuneration – you only get paid for work you do.

But despite these factors, it still feels like there could be a bit of a hill to climb.

There remains a question that could push the adviser over the self-employed line – is the self-employed adviser in business on their account?

In many situations, this is the case. Self-employed advisers who have their own book of business bring it to the firm with them and can take it when they leave.

Ownership of clients and a degree of financial risk taken by the self-employed adviser certainly helps with the employment status analysis.

It feels like only a matter of time until HMRC decides to shift its focus away from the world of sport and media to the financial services sector

However, matters aren’t always this straightforward and the firm may need to have some level of client ownership and protection to sufficiently protect its business.

With this in mind, a firm will need to carefully consider and balance the employment status risk against the risk to its business if it doesn’t have post-termination protections in place, such as restrictive covenants, which would protect its confidential information and client relationships if the self-employed adviser were to leave.

All that said, being “in business on your account” didn’t end up helping Barnes, with the Upper Tribunal drilling into other factors such as the right to provide a substitute, exclusivity and lack of financial risk.

It feels like only a matter of time until HMRC decides to shift its focus away from the world of sport and media to the financial services sector. If your business relies heavily on self-employed advisers, now might be a good time to start looking at alternative business models.

Claire Holland is a partner at Foot Anstey 

Good morning. What do Morgan McSweeney’s allies mean when they tell journalists he is “an agent of change” (to the Guardian) or “a smasher and a breaker by temperament rather than a moulder and manager” (to the FT’s Jim and Lucy)?

This portrayal of Keir Starmer’s new chief of staff is framed by the context of what was felt to have gone wrong since Labour took office. Among them: cabinet ministers being unable to appoint as many special advisers as they needed, spads receiving a pay cut that took them below their salary level in opposition (I know of several spads who were taking on roles that had been filled by two or three advisers in the last government and being offered a pay cut to do it), and a cabinet secretary, Simon Case, who did not inspire confidence and who many felt should have been ushered out the door in Starmer’s first week.

Similar dynamics played out when the Conservatives came into office in 2010 (indeed, one former Tory spad told me that reading about the rows gave them “a wholly unwelcome sense of déjà vu” about negotiating their pay with Sue Gray during the latter’s time as a civil servant). There were two complicating factors then: the first was that the Conservatives had pledged to reduce the number of spads, but also they had failed to win a majority. That meant negotiating both a reduced headcount and having to unexpectedly share that headcount with another party. (That also had implications for pay offers, as the Liberal Democrats had been on rather less money in opposition than their Conservative counterparts.)

What resolved some of those issues was David Cameron intervening in the process and adding political direction: the role that many expect McSweeney to now fulfil. But breaking down barriers between departments is also key to one of Labour’s big projects in office: the “five missions”. Some thoughts on historic attempts by previous governments to do something similar below.

Just checked in, to see what condition my five missions were in

What distinguishes the missions from the other promises Labour made at the last election is that they are explicitly cross-departmental. Achieving them requires various bits of Whitehall working together.

One reason why cross-departmental working has proved hard to pull off in the past is that the structure of the British government gives secretaries of state both broad and wide-ranging statutory powers, but also specific statutory responsibilities. It is those responsibilities that cabinet ministers are questioned on in the House of Commons, interrogated on by select committees and will be challenged on in the courts.

Equally importantly you have your own budget. As we speak, cabinet ministers are negotiating the terms of these budgets with the Treasury ahead of the Budget on October 30. Let’s take, say, Labour’s plans to increase the UK’s employment rate: if you are Liz Kendall, the secretary of state for work and pensions, then the lever you can pull yourself is to hire more work coaches or to deploy them differently. You can’t, however much you might wish to, start funding further education colleges yourself directly.

The big and most significant discussion within Labour in opposition was whether to do a further Whitehall reorganisation — with all the discombobulation that causes, the disruption to what ministers can do — or to continue with the structure Rishi Sunak had created. As Sunak’s reorganisation had fixed the biggest single problem in Labour’s mind, by bringing back a freestanding department for energy/climate change, the party opted to run with the existing set-up. That means finding ways to make “mission delivery” work with it — hence, in part, the agent of change/smasher stuff.

Greater devolution is, in part, intended to solve some of these problems: the idea being that if departments devolve money to combined authority mayors then they will use that money in new, innovative and cross-departmental ways. (Sam Freedman, a former policy adviser to Michael Gove, has written an interesting report on how to use combined authority mayors to improve public services for Labour Together, which you can read here.)

Starmer is far from the first prime minister to try and tackle this problem — in modern times, Winston Churchill’s peacetime government experimented briefly with “overlords”: cabinet ministers without portfolio who were meant to co-ordinate cross-departmental working, but he abandoned the experiment in 1953. Harold Wilson experimented with two innovations: the first in his 1964 to 1970 government was an “Inner Cabinet” not a thousand miles away from the idea of “overlords”, but he could never settle on who he wanted to have in it.

The second, more enduring innovation came in Wilson’s second stint as prime minister from 1974 to 1976: the Downing Street Policy Unit, which provides policy advice to the prime minister, separate from the civil service. We can expect that as a result of Starmer’s Downing Street reboot, this unit will get larger over the coming months.

Yesterday, our poll asked you: will Sue Gray’s exit draw a line under Labour’s difficult start? About 44 per cent of you said no, 31 per cent said yes it would, and a quarter of respondents were on the fence. Thanks for voting.

Now try this

This week, I mostly listened to Jonathan Armandary’s wonderful soundtrack to The Whip, a very enjoyable social conscience/heist movie that is in select cinemas at the moment, while writing my column.

Top stories today

ASOS has made a major change to its return fees, sparking fury amongst shoppers.

The online retailer will start charging customers when they return items unless they spend a certain amount.

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UK shoppers who frequently return orders will be charged £3.95 unless they keep up to £40 of their order.

The new rule, which has been introduced to crack down on serial returners, comes into effect today, October 8.

Talk of the rule change has upset ASOS shoppers, with some even threatening to boycott the online store.

Commenting on X, formally Twitter, one user wrote: “The problem for large returns is the fact half of your stock is ill-fitting and poor quality.

“You’re another brand now alienating your loyal customers.”

“Well ASOS if you actually made clothes that fit so I wouldn’t need to buy multiple sizes we wouldn’t have that problem, consider me no longer a customer,” posted another.

While another wrote; “Did you [ASOS] consider that returner fee isolates customers who don’t fit ideal body standards?

“As a curvy girl, I have to order several sizes and often make returns as your sizing is not consistent, now I’m going to be charged for it? Way to make me feel bad about my body.”

ASOS previously said that a “small number of shoppers” will be charged but has not elaborated on the exact number of shoppers affected.

Those hit by the change will need to keep £40 worth of goods to avoid the new charge.

Shoppers who already pay £9.95 a year for Asos Premier to get perks like free next-day delivery will not be exempt from the extra fee – but will have to keep a lower value of items.

For Premier customers affected, that will be £15.

Craig Smith, UK country manager at Scayle, an e-commerce platform, said the move could risk damaging customer loyalty.

He said: “Retailers like ASOS have tried to tackle the problem of returns by asking customers to foot the bill – but this is far from a silver bullet.

“Firstly, brands risk damaging customer loyalty by alienating customers who are reluctant to fork out a fee. “

It’s just the latest of many retailers to start charging for returns.

Here’s a full list of all the other retailers now charging customers to make returns.

Pretty Little Thing

PrettyLittleThing (PLT) started charging all customers for returns in June.

The fashion brand, owned by Boohoo, introduced a £1.99 fee on June 3.

The charge is deducted from a shopper’s full refund amount.

PrettyLittleThing fans who are members of its PLT Royalty programme can’t avoid the charge either.

PLT Royalty costs £9.99 a year and gives members free unlimited delivery on all items.

River Island

In February, River Island angered customers by introducing a £2 charge to return items ordered online.

The charge will be deducted from the total amount refunded after the customer has posted back the items.

River Island says items must be returned within 28 days of delivery and should be clean, unworn and with tags still attached. 

Angry customers have railed against the change and even vowed to stop shopping there.

H&M

H&M brought in a £1.99 fee in September last year.

The huge Swedish-owned retailer updated its policy on its website.

Shoppers returning parcels bought online via courier are now charged, with the cost coming out of their refund.

Those who are H&M members, which is free to sign up for, still get to return their hauls for free, though.

On the H&M website, it says: “There is a £1.99 return fee per return parcel to store or online for non-members, which will be deducted from your refund.”

However, it says that shoppers won’t be charged the fee if the item they’re bringing back is faulty or incorrect.

Boohoo

Boohoo also introduced a £1.99 charge for returns after previously offering them for free.

The large online retailer updated its policy on its website.

It states: “Please note a returns charge of £1.99 per parcel will be deducted from your refund amount.

“Returns are FREE for premier customers.”

A Boohoo spokesperson at the time said the change was due to the increase in the cost of shipping.

They added the decision was made so the company can “continue to offer great prices and products and do this in a more sustainable way”.

Boohoo’s policy also applies to shoppers who use gift cards, store credit, or vouchers.

Boohoo’s website states: “If you paid for your order with a gift card, store credit or a voucher, a replacement to the value of the refund will be issued minus the cost of £1.99 for returning the item to us.”

Zara

In May 2022, high-street retailer Zara started charging customers £1.95 for returns.

Shoppers are being charged £1.95 to send back items, with the fee deducted from their refund.

However, customers can still return items purchased online to a Zara store free of charge, as long as they have the matching e-receipt and it’s within 30 days from the date of shipment.

A spokesperson for Zara said previously: “Customers can return online purchases at any Zara store in the UK free of charge, which is what most customers choose to do.

“The £1.95 fee only applies to the return of products at third-party drop-off points.”

New Look

Back in 2023, New Look announced it was trialling a £1.99 return fee for online orders to offset any possible price rises.

The fee applies to postal returns only, with in-store returns for online orders continuing to be free.

In a statement at the time, a New Look spokesperson said: “New Look has taken the decision to trial a £1.99 fee for postal returns.

“This is in line with the wider industry and reflects increased costs related to delivery and collection. Customers are still able to return their online orders to our stores free of charge.”

Debenhams

In December 2023, Debenhams left shoppers feeling “cheated” after introducing a charge for returning online goods.

The new £1.99 fee came amid fears shoppers have been abusing free returns by ordering items, wearing them briefly and then sending them back.

The Debenhams website now says shoppers must pay £1.99 for every parcel returned.

Angry shoppers moaned on social media, with one saying: “Since when did Debenhams charge for returns?

“Should’ve been clear before placing an order #debenhams.”

Customers with Unlimited membership – which costs £9.50 a year -can make unlimited returns and deliveries with no additional charges.

Next

Next introduced the change at the start of 2023 and customers now have to fork out £2.50 per item returned.

Customers can save money on deliveries and returns by opting for an annual subscription, which costs £22.50 a year.

You can return any items to one of the retailer’s more than 450 stores without charge.

Previously, you could also get courier returns included for free as well, but the retailer has now ditched them.

It comes after a poll revealed that cash-strapped consumers are taking their money elsewhere in response to retailers slashing their free returns policies.

And this iconic high street retailer has angered customers by introducing a £2 charge to return items ordered online.

The HS2 railway line is likely to be extended to London Euston, the Transport Secretary has signalled.

Louise Haigh said “it would make absolutely no sense” to have the high-speed route terminate at Old Oak Common in west London.

Her comments come after work to expand Euston station to accommodate HS2 was halted by the previous Conservative government last year because of the mounting costs.

Haigh told BBC Radio 5Live a decision on where HS2 will end would be “clear soon”, with an announcement set to be made around the time of the Budget on 30 October.

Currently, the plan to terminate at Old Oak Common would mean passengers travelling to central London would have to change trains.

But Haigh told the BBC on Tuesday: “It would make absolutely no sense to build a £66bn high speed line between Old Oak Common and Birmingham.”

Former prime minister Rishi Sunak said in October last year, that extending HS2 from Old Oak Common to Euston, which is much closer to London’s centre, would be reliant on private investment and save £6.5bn of taxpayer’s cash.

It is currently unclear how the current Labour government is planning to fund extending HS2 to Euston. The Department for Transport has not responded to further questions from the BBC following Haigh’s comments.

However, in February, the Commons’ Public Accounts Committee released a report stating it was “highly sceptical” that the government would be able to attract private investment on “the scale and speed required” to make the extension to Euston as success.

Haigh said: “Even under the previous government’s chopped and changed and discredited plans for HS2 Euston was always going to be part of the solution.”

HS2 was originally a Labour party commitment, announced back in 2009, but since then, the project has been thwarted by ballooning costs and problems around its impact on communities.

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