Contracting for a current permie employer always IR35 caught?

[b0redom]

Hi,
At the place I'm contracting, one of the permies has been made redundant. He's a PM and it's likely that another account in a different part of the business may have a contract role for a PM come up shortly after he leaves.

Is it always the case that people leaving a company, and then rejoining shortly afterwards are IR35 caught, even if their position is made redundant? If their position is redundant and then they come back to do a different job as long as the right clauses are there, I don't see how they would automatically be caught?

Regards...

b0redom

[TheCyclingProgrammer]

Not always IMO, but you're starting off on the back foot with regards to showing you're not part or parcel of the organisation and not treated like any other employee.

However if the role is different and the contract has tight scope then treat it like any other role. Contract review, working practices etc.

[LondonManc]

As TCP says, they'll have to be ultra-careful on IR35 because it's the Friday to Monday contractors that it was put in place for. There's nothing wrong with being inside IR35, though, because it's only one contract.

[b0redom]

Thanks guys, as I expected, probably not worth risking declaring outside IR35 especially given he'll likely get a huge payrise from being a permie anyway.

[northernladuk]

Not always IMO, but you're starting off on the back foot with regards to showing you're not part or parcel of the organisation and not treated like any other employee.

However if the role is different and the contract has tight scope then treat it like any other role. Contract review, working practices etc.

Where this might be true I'd say being in the back foot is a massive understatement and even with all the things mentioned in the last paragraph solidly in place the one risk you can't sign away is the ex employee continuing to act like one and make himself part and parcel. Personally I'd start if with the thinking you're definitely inside and attempt to work up from that.

[LondonManc]

Where this might be true I'd say being in the back foot is a massive understatement and even with all the things mentioned in the last paragraph solidly in place the one risk you can't sign away is the ex employee continuing to act like one and make himself part and parcel. Personally I'd start if with the thinking you're definitely inside and attempt to work up from that.

Unfortunate but true. They'll be treated as part and parcel so may as well slap an extra £50 on their day rate to cover expenses and tax.

[SueEllen]

Thanks guys, as I expected, probably not worth risking declaring outside IR35 especially given he'll likely get a huge payrise from being a permie anyway.

Very risky for the company.

In theory he could sue them for constructive dismissal or discrimination as there is a position in the company he has the skills to do.

When your position is made redundant the company has to check there isn't a role you have the skills to do, and it doesn't have to be the same position.

I know some larger companies refuse to engage ex-employers for anything from 6 to 12 months even if the employee resigns to ensure they can't be sued.

[DallasDad]

I had a 12 month no returning to HP clause in my severance package and that included returning as a contractor
So that is the first thing said PM should investigate.

[missinggreenfields]

I'd take professional employment advice if I was in his shoes - how can he be made redundant if there is work at the company for him to do?

If he's not genuinely redundant (and it doesn't sound like he is) then the tax treatment of his redundancy pay is very different and he'll need to declare the income or hope that he doesn't get caught.

[Old Greg]

When I started contracting I did a Friday to Monday, in that I joined a team of contractors who I had previously been working with as a permie secondee from a different organisation. So slightly different from the typical Friday to Monday scenario, and I was confident I was outside IR35.