Freelancer and Contractor Services Association (‘FCSA’) has received the final determination of the FCSA’s Independent Arbitration Panel (‘IAP’), regarding the membership status of Orange Genie. The full IAP report is available to download below.
This was the first time this process has been undertaken and followed a breach of Articles A3e and A17 of FCSA’s Code of Compliance as determined in October 2022.
Orange Genie followed the process to appeal to the IAP in October 2022. From the outset, it was agreed by all parties to accept the IAP’s findings in full. Following a hearing, the IAP – which was asked to examine only the breaches of Umbrella Code articles A3e and A17 – issued non-binding recommendations in November 2022 that Orange Genie paid an immediate fine, took remedial action and was suspended from FCSA for six months whilst they worked to remediate Code breaches. FCSA accepted these recommendations in full.
Following these measures, and the submission of two independent reports, by BDO on behalf of FCSA, and by MHA Baker Tilly on behalf of Orange Genie, the IAP has determined that whilst Orange Genie historically were not transparent in their deductions, the IAP is content that Orange Genie is now compliant with Articles A3e and A17. The period of suspension ended on 11th May 2023, but Orange Genie’s FCSA accreditation lapsed on 31st March. Should they decide to reapply for FCSA membership, Orange Genie will undergo a full re-accreditation assessment. During this period, Orange Genie will not be accredited by FCSA until they have successfully been assessed against the current membership criteria.
Since the incident in question, and following the IAP’s observations and resulting recommendations, FCSA has further strengthened its disciplinary procedures and has acted as requested to mitigate against the prospect of a recurrence of a breach of Articles A3e and A17 by any member going forward. FCSA randomly samples payslips, verifies them using third-party software and compares the output to the RTI returns made to HMRC by members. We do this on an ongoing basis and will continue to do so.
FCSA welcomes the conclusion to this case which demonstrates the importance of a robust disciplinary process and avenues for independent appeal. We will also continue the collection of random samples of payslips from members and utilising third party software to verify payslip calculations and compare these with the corresponding returns to HMRC.
Chris Bryce, Chief Executive of FCSA, said,
“We accept today’s determination, and acknowledge that Orange Genie have met the remediation requirements recommended by the Independent Arbitration Panel following Orange Genie’s breach of Article A3e and A17 of our Umbrella Code of Compliance. Whilst FCSA have not been given sight of the report from MHA Baker Tilly commissioned by Orange Genie, we accept the IAP’s view that it draws much the same conclusion as the report submitted by BDO.
“Should Orange Genie decide to reapply for FCSA Accreditation, we wish to emphasise that any re-admission to membership of FCSA is dependent on a successful outcome to the process of re-assessment.
“We have no doubt that members, along with the whole industry, will welcome the action FCSA have taken to reinforce our requirements for full transparency and openness for workers engaged by our members.”
Paul Bresnihan, CEO of Orange Genie, said,
“We are delighted with the IAP’s decision and were always clear that there was no deliberate wrongdoing by ourselves. We regret the oversights that led to breaches of the FCSA code, and we made changes immediately once we were notified of them. New processes have now been put in place by the FCSA and we’re pleased to have been of help in facilitating this process of improvement.
“We are dedicated to upholding standards of compliance within the industry and are happy to be challenged on all of our processes. The best interest of our contractor employees is at the heart of everything we do, and we welcome this opportunity to improve transparency for them.
“At great expense we sanctioned an independent report from Baker Tilly which we are happy to share with any of our agency partners. This report confirms that Orange Genie operate within employment and tax law.
“Unfortunately, we did not see the BDO report, but we understand the findings were in line with the Baker Tilly report, further cementing that Orange Genie were always fully compliant with employment and tax law.”
The IAP’s full statement can be downloaded here