Should a Self Employed Locum Clerk have a contract?

Question

Whilst HMRC at https://www.gov.uk/hmrc-internal-manuals/employment-income-manual/eim67300 categorically states that a parish clerk cannot be self employed it is less clear about a locum clerk role.

To ensure due diligence, what checks and balance should be put in place wrt a self employed clerk who may work a multiple parishes? E.G. in terms of compliance with GDPR, financial regs, confidentiality and parish policies? I appreciate that much of this is compliance with law, but should one make it explicit?  

And if the locum clerk holds an RFO role with access to bank accounts? 

If any example "contracts" or "guidance" are available, that would be most helpful.

Thank you

Answer 1

What we have in the 'locum' scenario which is endorsed by ALC / NALC, SLCC etc, is a self fulfilling contradiction of the HMRC policy position which is formed from misinformation / misdirection provided to HMRC from the likes of NALC / SLCC.

The premise of the case for HMRC to declare that a clerk MUST be PAYE is that there are (not might be / could be) but ARE office holders ie RFO / PO.

The reverse engineer of that premise should obviously be that the role should be split into the 3 separate functions of:

(1) clerk - basic admin, minutes / agenda, public phone calls, bookings etc, etc

(2) proper officer - akin to the company secretary with lawful duties

(3) responsible financial officer - akin to company accountant again with lawful duties

Note - it is not essential that (1) (2) & (3) all be 1 person or that (2) & (3) cannot be an unpaid Cllr or a volunteer but it is the 'office holder' function of (2) & (3) which HMRC relies upon to validate their position that they must be PAYE.

It is my suggestion that the role should actually be split anyway (and is split where the size of the council allows for more than 1 staff member) since it is unrealistic to expect the 3 roles to be delivered within 1 pay point bracket.  You have basic admin at what should be the £10-12 per hour bracket and the RFO / PO functions which should probably be in the £40-50 per hour bracket.  

I would suggest that many of the problems highlighted at this forum could be traced back to the basic principle that personalities rather than qualification / experience (lack of) are at the root of many of the issues raised.

Of course the likes of NALC / ALC & SLCC are representing the best interest of the clerks and wouldn't wish to acknowledge / accept or facilitate a perception of denudation of the role but - the more I see the more I am convinced - the term "clerk" should be broken down into the 3 separate distinct functions.

You absolutely CAN have an unpaid / volunteer RFO / PO, and you absolutely CAN have a locum 'clerk' on a temp contract as SE so the premise that it is the 'office holder' scenario that ties 'clerk' employment to PAYE is self evidently flawed...

Can of worms...

Answer 2

The term locum can cover a multitude of scenarios from a temporary clerk who is covering whilst your employed clerk is on holiday or unwell or to cover while you recruit for a replacement clerk which might take a while.  Most who provide locum services tend to invoice as a contractor if the cover is just for a short period (a few weeks maximum) and would consider themselves employed and on the payroll/PAYE for longer periods.
I'm reading your question as wider than simply should the clerk have a contract of employment but in both scenarios, I would suggest that a contract is important whether it's a (temporary) contract of employment or a contract for services in the same way as you would have a contract for any contractor undertaking work for your parish.  You need to identify what it is you want or need from the locum and make it clear when the individual is engaged what is expected of them.
With regard to your specific point about access to bank accounts, frankly it is such a faff to add access to a bank account that I'd avoid it if at all possible for a very short period but clearly if your locum is going to be appointed for some months, then he or she will probably need to be able to set up payments etc.