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Hays and IR35

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    Hays and IR35

    Hi All

    Hoping for some advice. Getting really frustrated with a Hays recruiter who IMO doesn't know what he's talking about.

    I am running as a Ltd Company.

    The client is a charity, completely independent of the government, so not a museum, school, college, uni etc.

    Hays have a standard contract for contractors, and one they haven't modified since before 6th April. It makes mention of 10am notification if I'm not going to be in and other little bits and pieces that QDOS says needs exception clauses in the Schedule. I had a contract with Hays in Feb 2017, for a public sector company. They were happy to add some clauses in to make it more IR35 friendly.

    Now I've got another role with hays, an independent charity, and Hays are still using the same contract. So I asked for the same clauses. The recruiter comes out with all sorts; that charities and not-for-profits are EXEMPT from IR35, that the charity has confirmed the the role is outside IR35 (even though liability falls on me, not the client), that if HMRC do an audit liability will be on the client not me (BS!), that 2 of their contractors were audited and came clean (BS!).

    My understanding was you've got 2 groups; public sector and government affiliated charities (schools, museums) and then private sector + independent charities.

    I'm 110% that in the private+independent charities, liability falls on me, and HMRC don't give a rat's arse what the recruiter or client says about the status of IR35; it's purely down to contract and the conditions of work (i.e. substitution, lack of control, mutuality of exclusion etc)

    Can someone who's worked with Hays post April 2017 confirm if other that recruiters are peddling the same BS or is it just this guy?

    #2
    The criteria for the public sector IR35 regulations is based on the Freedom of information act. If included in that act the organisation is subject to the regulation if not included in that act they are not (which means GCHQ and MI5 aren't subject to the rules).
    merely at clientco for the entertainment

    Comment


      #3
      I haven't worked with Hays but confirm that you are broadly correct. IR35 applies across the public sector and the private sector, but the new rules putting liability on customers or agencies only applies to the public sector (which includes a handful of charities but not that many).

      Not strictly correct that HMRC don't care what the agency or the end client thinks about IR35 as they would approach them in the event of an investigation to see what they said about the actual working practices. Any liability would be down to you/your PSC. However, HMRC have pretty much given up on enforcing IR35 (whatever they try to claim) as they lose most of the cases that go to Tribunal, so if you are not working in the public sector there is far less worry about IR35 (for now).

      Hays are probably being over-cautious here but they have a lot to lose if they get IR35 wrong so can understand their initial approach, but they should probably be more flexible.

      Comment


        #4
        https://www.theguardian.com/voluntar...s-transparency

        The government is reportedly planning to extend the Freedom of Information Act (FOI) to cover charities who receive public money. In what is undoubtedly fallout from the Kids Company debacle, the proposal that anyone should be able to keep charities honest by submitting requests to see correspondence, performance data and policy discussion from them will prove, in all likelihood, popular.
        You can kinda see why Hays are being cautious/not now. Looks like it's a bit of minefield at the moment.

        Are you 100% sure this 'independent' charity receives no funding whatsoever?
        'CUK forum personality of 2011 - Winner - Yes really!!!!

        Comment


          #5
          Originally posted by northernladuk View Post

          Are you 100% sure this 'independent' charity receives no funding whatsoever?
          Not relevant in this case, see the above: IR35/Public sector is based on FoI status. Source of funds is irrelevant (at this time)

          Source: I'm in a Hays contract (till 1700 today) @ a non profit. My agent IS helpful/clued up on IR35. PM if you want a number ;-)

          Comment


            #6
            If you drop me a PM we can speak to Hays directly to get it resolved.
            Qdos Contractor - IR35 experts

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