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Outside of IR35 Evidence Collection

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    Outside of IR35 Evidence Collection

    I’m conscious of IR35 as I’m sure we all are, I work with a Private Sector client on site and occasionally from home using my own equipment to remotely log in. The work I am doing to is specific with deliverables; the contract has been extended from an initial 6 months to 15 and counting.

    I understand that I should be collecting evidence which proves I am separate from the perm employees, the evidence I have is all hard copy papers nothing electronic.

    • Emails notifying of times out of the office (WFH and non-billable time)
    • Org charts where I am clearly marked as a contractor
    • My email signatures clearly state contractor
    • Joiners process documents which distinguish between perm and contractor on boarding
    • Christmas furlough emails stating contractors are not to be in the office during Christmas
    • Photo of my ID pass which is colour coded for contractors
    • Contractor new joiner packs
    • I make a point of outlining what I have been working on in my timesheets before they are submitted for approval.

    As I say all this evidence is paper based I assume this would be acceptable, and is there anything else I should be collected as evidence to support any future IR35 interrogations?

    #2
    I dont like the email notifying times. Could be counter productive that.

    Xmas furloughs are not really an IR35 defence. That's contractual.

    Get IPSE+ or TLC35. Keep doing all the stuff above, keep you eye on your status and you'll be ahead of 90% of other contractors.
    'CUK forum personality of 2011 - Winner - Yes really!!!!

    Comment


      #3
      HMRC will look at your relationship with your client and how your interactions with them are similar to, and different from their interactions with their employees in the first instance.

      They will then look at documentary evidence including the written contract.

      A good place to start would be a review of both the written contract and working practices by someone like IPSE or an accountant specialising in services for contractors.

      Should HMRC ever come knocking then having had these reviewed tells them that you have considered your status and have taken professional advice.

      As part of our service we offer unlimited reviews of contracts for IR35 purposes.

      Comment


        #4
        Originally posted by mrjaywarren View Post
        I’m conscious of IR35 as I’m sure we all are, I work with a Private Sector client on site and occasionally from home using my own equipment to remotely log in. The work I am doing to is specific with deliverables; the contract has been extended from an initial 6 months to 15 and counting.

        I understand that I should be collecting evidence which proves I am separate from the perm employees, the evidence I have is all hard copy papers nothing electronic.

        • Emails notifying of times out of the office (WFH and non-billable time)
        • Org charts where I am clearly marked as a contractor
        • My email signatures clearly state contractor
        • Joiners process documents which distinguish between perm and contractor on boarding
        • Christmas furlough emails stating contractors are not to be in the office during Christmas
        • Photo of my ID pass which is colour coded for contractors
        • Contractor new joiner packs
        • I make a point of outlining what I have been working on in my timesheets before they are submitted for approval.

        As I say all this evidence is paper based I assume this would be acceptable, and is there anything else I should be collected as evidence to support any future IR35 interrogations?
        You're already ahead of the game. Certainly, you want to be recording anything that distinguishes you from a permie.

        That said, a lot of the things above are circumstantial in the sense that they point to you being treated differently than a permie, but not necessarily to the three pillars that would put you outside when investigated, namely RoS, MoO, and D&C. It's good if you can break things down into those categories and then put everything else in an "other". Obviously, RoS is difficult to demonstrate, since the unfettered right is sufficient, but you'd want to record evidence of a valid substitution if it occurred. Examples of lack of MoO might be that a piece of work was offered and was not accepted (e.g. because it was out of scope or you simply didn't want to do it), or that a piece of work was offered and accepted, but only after a formal contract mod. Examples of lack of D&C are extremely varied, and these make up the bulk of my evidence. For example, evidence that you do not take instructions on where (WFH), when (control over your own hours) or how the work is done (you dictate the methodology).

        Again, though, you're already ahead of the game, and the simplest advice would be to record evidence of pretty much everything you think could be relevant. Then, in the event that you're unlucky, you'd pass all of this evidence on to the experts who would sift through it and build your case. As you correctly allude to, recording evidence of things that happened several years prior (probably after client reps have moved on) is half the battle.

        It's also worth getting in place a Confirmation of Arrangements, if you can. Status experts argue about how much this helps, but it doesn't hurt.

        Comment


          #5
          I keep any email asking advice on how to solve problems. Shows I'm the expert they rely on.

          I have an email asking if I'm willing to have my work go through a group code review for the purposes of training their people in the code. You don't ask an employee that question, you tell them to be there for the code review. Shows lack of SDC. I also kept my response telling them which code should be reviewed.

          I keep any email telling them I'm not going to be available certain dates/times. I'm not asking, I'm informing. Makes it harder to argue there is MoO since I obviously don't have an obligation to be there. Also helps on SDC, they aren't controlling when I work.

          I keep anything declining work or offers to extend contracts. I keep anything for which I make counter-offers -- again, helps on the MoO front, there's no obligation to accept their offers.

          I try to get a copy of their employee benefits package and then make a note of absolutely everything employees get that I don't.

          The more stuff you have, even if it is circumstantial and even if some of it is of limited value, the more likely they are to say, "This guy know what he's about and this one isn't worth fighting."

          At least, that's my view.

          Comment


            #6
            Originally posted by WordIsBond View Post
            I keep any email telling them I'm not going to be available certain dates/times. I'm not asking, I'm informing. Makes it harder to argue there is MoO since I obviously don't have an obligation to be there. Also helps on SDC, they aren't controlling when I work.
            I struggle with this one. If you sign a contract don’t you have an obligation to provid services? If not, can’t you simply flout notice periods by saying you’ll be unavailable. I’m tryinng to understand the legal position here. Is it or is not breach of contract to refuse to provide services during a particular period of the contract?

            Comment


              #7
              Originally posted by base View Post
              I struggle with this one. If you sign a contract don’t you have an obligation to provid services? If not, can’t you simply flout notice periods by saying you’ll be unavailable. I’m tryinng to understand the legal position here. Is it or is not breach of contract to refuse to provide services during a particular period of the contract?
              You need to understand what obligation to work actually means. In summary it means you're an employee. So no, you should not have an obligation to work.
              WIB's evidence collection is the same as I do as it proves no obligation, and no SDC.

              And you're not refusing to provide services, you're just deciding when, where and how you provide them (which is almost a dictionary definition of being outside IR35).
              Last edited by Lance; 27 November 2017, 10:22.
              See You Next Tuesday

              Comment


                #8
                Originally posted by WordIsBond View Post
                I keep any email asking advice on how to solve problems. Shows I'm the expert they rely on.

                I have an email asking if I'm willing to have my work go through a group code review for the purposes of training their people in the code. You don't ask an employee that question, you tell them to be there for the code review. Shows lack of SDC. I also kept my response telling them which code should be reviewed.

                I keep any email telling them I'm not going to be available certain dates/times. I'm not asking, I'm informing. Makes it harder to argue there is MoO since I obviously don't have an obligation to be there. Also helps on SDC, they aren't controlling when I work.

                I keep anything declining work or offers to extend contracts. I keep anything for which I make counter-offers -- again, helps on the MoO front, there's no obligation to accept their offers.

                I try to get a copy of their employee benefits package and then make a note of absolutely everything employees get that I don't.

                The more stuff you have, even if it is circumstantial and even if some of it is of limited value, the more likely they are to say, "This guy know what he's about and this one isn't worth fighting."

                At least, that's my view.
                Are you sure your understanding of MoO is correct?

                Within any contract there are various mutual obligations – the obligation to perform and be paid for performing would form part of any contract – but the mutual obligations needed for a contract of employment to exist consist of more that this.

                A lot has been written on the subject of mutuality of obligations in the context of employment but instead of getting tied up in phrases like 'care and continuity' and 'trust and confidence' it is probably safer simply to look at the definition that has come out of the major case law decisions.

                In cases such as O'Kelly v Trustehouse Forte (1983) and Carmichael v National Power (1999) the question asked was: is there an obligation to offer and an obligation to accept future work. In both cases the answer was no and therefore the courts found that there was not sufficient mutuality of obligation to form a contract of service.

                Therefore, if a contract has a clause which reads:

                "The client is not obliged to offer ongoing contracts or work to the company nor is the company obliged to accept such contracts or work if offered" there can be no mutuality of obligation and therefore no contract of employment.
                IR35: Substitution, Control and Mutuality of Obligation :: Contractor UK
                'CUK forum personality of 2011 - Winner - Yes really!!!!

                Comment


                  #9
                  Originally posted by WordIsBond View Post
                  I keep any email asking advice on how to solve problems. Shows I'm the expert they rely on.

                  I have an email asking if I'm willing to have my work go through a group code review for the purposes of training their people in the code. You don't ask an employee that question, you tell them to be there for the code review. Shows lack of SDC. I also kept my response telling them which code should be reviewed.

                  I keep any email telling them I'm not going to be available certain dates/times. I'm not asking, I'm informing. Makes it harder to argue there is MoO since I obviously don't have an obligation to be there. Also helps on SDC, they aren't controlling when I work.

                  I keep anything declining work or offers to extend contracts. I keep anything for which I make counter-offers -- again, helps on the MoO front, there's no obligation to accept their offers.

                  I try to get a copy of their employee benefits package and then make a note of absolutely everything employees get that I don't.

                  The more stuff you have, even if it is circumstantial and even if some of it is of limited value, the more likely they are to say, "This guy know what he's about and this one isn't worth fighting."

                  At least, that's my view.
                  This reminded me of something, I was offered my role as a perm prior to renewing the contract which I decline, I have this in email.

                  I'll also scan through some old "requests" to do things, though I doubt I have any declining responses.

                  Comment


                    #10
                    1. Keep a written record of every conversation you have, write it down in real time so you don't miss anything.

                    2. Whatever you do don't ever accept a drink, a gift, or even a kind word from anyone there. If you go to the Xmas party wear a suitable disguise. HMRC might also be there.

                    3. Bear in mind you can be investigated at any time - it's a good idea therefore to carry around all evidence that you collect. Hard copies only. You can buy a mule if you need an help (tax deductible).

                    You should also have a look at this Gov link

                    You might be surprised.

                    Comment

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