I'm not even convinced that HMRC would see it as genuine self-employment. Not when the duties are exactly the same as those performed by the PAYE employees (if any).
It'd be an interesting situation to run a test case.
NuLabour bought in the IR35 regulations to combat people who were de-facto employees running their income through a limited company and thus avoiding PAYE.
These were the typical high earner who can offord a bit of accountat's time.
IR35 was strongly challenged in court, and case law (Is that the right name for the basis of previous judgements) provided a definition that was possible to avoid with a bit of assistance from the "Customer/Employer" - Specific wordings in the contact, breaks of service (Holidays), substitution during quiet times, ensuring the subject's timesheets is booked to project codes, subject carrying professional liability insurance..
In spite of its porous nature IR35 exists.
The new bogus self employment is rather different.
Employees are typically low skilled on poor or no wages.
The boss enforces self-employment as a way to avoid minimum wage, NI, holidays and employers insurance.
I'm pretty sure the boss offers the employee no advice on setting up a company, managing the income, insurance requirements or the need to submit accounts at year end.
We're probably looking at an informal cash-in-hand arrangement.
But (I'm extrapolating here based on an interview I attended)...
The employee will at some point have signed a waiver declaring that s/he is self-employed.
I had this shoved in my face when I booked in for interview, and insisted on reading the detail.
The fact that I decided to read it had them preparing to forcibly eject me - more of that if we ever open a thread on political violence.
I politely declined and left the building - closely shadowed.
The gist of the waiver is that the employee assures that s/he is self employed, responsibility for maintaining legal status rests entirely with the employee.
It's in effect an indemnity for the employer.
This would probably be enough to get the employer off the hook on any IR35 prosecution.
I'd be extremely interested to know whether there's a method to outlaw this type of "employment".
The Mirror is campaigning strongly against it, but I can't imagine Dave and Gideon seeing anything wrong with the practice.
It would require another attempt to define a difference between employment and self employment.
Any solution seems to be to depend on abolishing the situation where a person can say "I am a person, now I'm a company, now I'm a person again".
I don't object to this, but realise it would screw up a lot of respectably paid people in technical 'craft' jobs.
Apologies as I've waffled again.