Bauer & Cottrell contract review - suggests I will never be outside IR35?!

[d000hg]

I wasn't under the impression that being a "short term additional resource" was a red flag for IR35 in the first place. Is it? Because I'm sure loads of software developers fit this pattern, much as we ideally would like to contracted for specific deliverables.

[nomoregantcharts]

What was the outcome of this in the end? Did you find a way to adjust the working practices so that you are outside IR35?

[eazy]

Other Pointers

IMHO even if you are a temporary resource, you can be outside IR35 if :

1) You have a genuine Right of Substitution (RoS)
2) You have right to refuse work which is offered and the client is not obliged to offer any work even within your current assignment. No work no pay
3) Client does not have the right to tell you "how" to do your job.

As others have stated, most projects have mixture of staff & contractors. It is the details of your contract and working practices which sets you aside from permies, not what work you do!

[zippy.mini]

IMHO even if you are a temporary resource, you can be outside IR35 if :

1) You have a genuine Right of Substitution (RoS)
2) You have right to refuse work which is offered and the client is not obliged to offer any work even within your current assignment. No work no pay
3) Client does not have the right to tell you "how" to do your job.

As others have stated, most projects have mixture of staff & contractors. It is the details of your contract and working practices which sets you aside from permies, not what work you do!

I agree, but it seems HMRC do not. At least, not any more. This has today been concluded following a questionnaire that the hiring manager kindly filled out. Even though in said questionnaire, he agreed that I have a ROS, he is not under any obligation to give me work (no work no pay) and he cannot tell me how to do the work, I am still inside. Probably has something to do with the fact that we agree mutually where I will do the work - I cannot wake up in the morning and decide to work from home for instance, unless agreed. This is due to the nature of the work though, as I am there to do some desktop "end user" support so they need a certain number of people on site. If there aren't enough people, then I need to go in. To me, that's reasonable as the work I've been brought in to do dictates that and I am professional enough to understand when and where I am needed, but I guess it could also be construed as the client having control over me. It also has something to do with my not having been brought in to work on a specific project. My contract states that I'm doing support work, no mention of a project. This is apparently a big no no. I thought that the fact that I am actually backfilling for other staff who are working on a project and I am only there until that project is complete and the project is paying for me, would count in my favour, but no. (I am actually working on the project as well as it turns out, but the contract states that I'm doing support) It just means that I am more like an employee because I'm doing the same job as other permies.

I don't know, I am disappointed with the result and it does go against everything I understood to be the case from a couple of years ago, but I have to suck it up. It does mean that most subsequent contracts I have also will almost certainly be inside too, in the eyes of B&C and presumably therefore HMRC. All the items that apparently put me inside here are normally present in just about any support contract I do. I guess I have to avoid support and do projects only.

[jamesbrown]

I agree, but it seems HMRC do not. At least, not any more. This has today been concluded following a questionnaire that the hiring manager kindly filled out. Even though in said questionnaire, he agreed that I have a ROS, he is not under any obligation to give me work (no work no pay) and he cannot tell me how to do the work, I am still inside. Probably has something to do with the fact that we agree mutually where I will do the work - I cannot wake up in the morning and decide to work from home for instance, unless agreed. This is due to the nature of the work though, as I am there to do some desktop "end user" support so they need a certain number of people on site. If there aren't enough people, then I need to go in. To me, that's reasonable as the work I've been brought in to do dictates that and I am professional enough to understand when and where I am needed, but I guess it could also be construed as the client having control over me. It also has something to do with my not having been brought in to work on a specific project. My contract states that I'm doing support work, no mention of a project. This is apparently a big no no. I thought that the fact that I am actually backfilling for other staff who are working on a project and I am only there until that project is complete and the project is paying for me, would count in my favour, but no. (I am actually working on the project as well as it turns out, but the contract states that I'm doing support) It just means that I am more like an employee because I'm doing the same job as other permies.

I don't know, I am disappointed with the result and it does go against everything I understood to be the case from a couple of years ago, but I have to suck it up. It does mean that most subsequent contracts I have also will almost certainly be inside too, in the eyes of B&C and presumably therefore HMRC. All the items that apparently put me inside here are normally present in just about any support contract I do. I guess I have to avoid support and do projects only.

You seem to be missing that B&C are offering an opinion (classification) that is filtered by their view of risk. It doesn't mean that you would definitely lose an IR35 investigation, only that you are not in a sufficiently strong position to warrant a "pass" according to their terms of review. It's up to you what you do with this information, and you can seek a second review if you wish (which could result in a pass; this is always possible given the subjectivity involved and the differences in risk tolerance between reviewers). However, if the contract and working practices have been failed by one reviewer, you shouldn't expect a confident pass by another reviewer, especially when there's a good chance that D&C is involved.

Nothing has changed in the way IR35 is judged against case law. This is likely to change in April 2017, but nothing has changed recently. So your understanding of IR35 may well be correct, but your confusion lies with how a particular review service (and reviewer) maps a set of risks to a "pass" or "fail". Of course, I haven't seen your contract or working practices, and it may be that most or all reviewers would consider your working practices inside.