Advice - Rights after 4+ years

[TheCyclingProgrammer]

Yes it's my own Ltd Co and I contracted directly, no agency. I'm operating outside of IR35

Are you sure? Because there's a lot of warning signals in your OP:

* Working without a contract on ad-hoc projects but still expecting to work and get paid anyway - a level of MOO that would suggest employment and probably a large degree of direction and control in terms of the work you're expected to perform.

* No mention of a right of substitution (hard to argue you have one in any case without a contract in place)

* Been there for nearly 5 years, refer to people as "your boss" and angling for employee rights - suggests very much you're "part and parcel" of the organisation. I'd expect even the most dilligent of contractor to find it hard to start being seen as part of the furniture having been there that long.

* No contract so would be reliant on the terms of your most recent contract and that contract being deemed outside of IR35 as a starting point.

In your favour:

* It sounds like some people in the organisation still think of you as a contractor at least.

* You work from home so possible to argue you aren't controlled on a day to day basis.

* You're retiring soon so probably going to be shutting up shop so might take you off of HMRC's radar

* HMRC's general lack of resources for investigating IR35 cases and general incompetence.


It doesn't sound great though.

[TheCyclingProgrammer]

It appears I need to get proper legal advice (even if only the IR35 point) so if anyone can recommend a firm with expertise in this area then I would appreciate details

QDOS, Bauer and Cottrell.

[Culzean]

Are you sure? Because there's a lot of warning signals in your OP:

* Working without a contract on ad-hoc projects but still expecting to work and get paid anyway - a level of MOO that would suggest employment and probably a large degree of direction and control in terms of the work you're expected to perform.

* No mention of a right of substitution (hard to argue you have one in any case without a contract in place)

* Been there for nearly 5 years, refer to people as "your boss" and angling for employee rights - suggests very much you're "part and parcel" of the organisation. I'd expect even the most dilligent of contractor to find it hard to start being seen as part of the furniture having been there that long.

* No contract so would be reliant on the terms of your most recent contract and that contract being deemed outside of IR35 as a starting point.

In your favour:

* It sounds like some people in the organisation still think of you as a contractor at least.

* You work from home so possible to argue you aren't controlled on a day to day basis.

* You're retiring soon so probably going to be shutting up shop so might take you off of HMRC's radar

* HMRC's general lack of resources for investigating IR35 cases and general incompetence.


It doesn't sound great though.

Thanks for all of that .. I didn't appreciate it was such a minefield!! To respond to a few of your points


* I get zero direction. Initially I worked on a few projects but for the last 2/3 years I have had a stand alone role and no direction whatsoever ... in fact I am about the only person in the business that understands what I do!

* I use the term 'boss' lightly ... only time I saw him in 2018 was for a pre Xmas drink

* They do regard me as a contractor, most definitely

* All 3 contracts I had included a right of substitution

I think the IR35 issue (of which I clearly don't have a good knowledge of) is the key issue here. My initial question was designed to seek advice as to how I might go back in the event they tell me 'time's up'. It's clear I have no basis to argue the matter and so I just hope they honour the last contract and give me the 4 weeks.

As for HMRC, maybe I just hope that by closing down my Ltd Co before the end of my Fin Yr (August) will mean I keep off their radar too (if indeed there is anything to worry about)

Thanks again

[northernladuk]

* I get zero direction. Initially I worked on a few projects but for the last 2/3 years I have had a stand alone role and no direction whatsoever ... in fact I am about the only person in the business that understands what I do!

This is actually pretty bad for you. This is EXACTLY what happened in the JLJ case and he got ruled inside for 4 of the years on exactly the points that have been mentioned here. 140k it cost him.

Also If you are the only person then it's obviously an enduring role they should be getting in a permie in to do.

QDOS may give some advice but without a contract they've nothing to review and won't insure you without it. In fact without a contract at all it's unlikely they will go anywhere with it.

[WordIsBond]

When you complete a task, who decides the next task? You or the client?

Honestly, one of the best things that could happen to you is to be terminated without notice. That would show it is not an enduring role, it would show they don't view you as an employee, it would show you don't have normal rights. You could seriously be in trouble on IR35, and that would help a lot.

There's enough question about Supervision/Direction/Control that you might be able to beat an IR35 case. Your right of substitution may not hold up under HMRC scrutiny, but at least you can claim it is there and so you believed you were outside IR35. So you probably wouldn't have penalties.

The chances are reasonable you won't be investigated, since you've been direct, and with a small company.

If it were me, I'd just carry on. You might beat the IR35 rap if it came, there's enough argument against SDC to at least fight it, and you can claim substitution. Chances are good it will never come. I'd join IPSE or buy QDOS insurance so you have someone to fight your case. I wouldn't pay for a contract review -- there's no contract to review.

I'd just carry on those few more months, retire, and close your company.

I'd also compile a list of things you expect to do in the coming months. I'd give it to your current supervisor / contact person so that if you come under scrutiny and they are asked what you are doing they can immediately say. If you are the only person who understands then you need to start making sure they value it.

If the meeting comes where they tell you to hit the road, you can say, 'Ok. I was retiring this year anyway. But you do have these tasks that need done (the list comes out). Do you want me to knock off any of these before I go?' That allows the hot-shot to have her satisfaction of clearing out another contractor but possibly lets you keep on working a little longer to solve some of their problems.

Also, do they know you are retiring? Depending on the people involved, they may be willing to let you just hang on a little longer, since you are going anyway, if they know that. Of course, there may be others who would say, 'He's out of here soon anyway, let's get rid of him.' Without knowing the people, it's hard to say whether it is better to let them know about your retirement or not. But you might want to think about that one.

If you think they need to replace you, you might preempt a lot of this by telling them you are retiring and that you'd be glad to stick around to train their replacement, if they will hire him.

[JohntheBike]

Start with the links on the right, and also IPSE's guide to IR35 https://www.ipse.co.uk/uploads/asset...4e9e8ee122.pdf

Who is the "they" that "set you up"? The decision (assuming you're working in the private sector) about whether IR35 applies, and liability for getting it wrong, is yours not "theirs".

Would you be able to argue that you are in business on your own account? Statements like "I am not a career Contractor" would suggest that this is unlikely.

It's possible that you could argue that you are a worker and get the rights that come with that, but in doing so you are putting yourself very firmly inside IR35 and would need to treat 95% of the income from the contract as salary, with the appropriate Employer and Employee NIs and Income Tax deducted from your rate.

As others have said, in the absence of anything new being signed, it's possible you could argue that the terms of the original contract apply. However if that is truly outside IR35, then there will be no obligation for them to provide you with work (or pay you) even if the notice period is honoured. But should they want to get rid of you, you could politely make it clear that you have a notice period, and they may well honour it and give you work for that period.

"the terms of the original contract apply"

under contract law, I believe that would be the case.

[northernladuk]

"the terms of the original contract apply"

under contract law, I believe that would be the case.

Possibly but it's going to be very difficult to prove anything if the tulip hits the fan.

[JohntheBike]

Thanks for all of that .. I didn't appreciate it was such a minefield!! To respond to a few of your points


* I get zero direction. Initially I worked on a few projects but for the last 2/3 years I have had a stand alone role and no direction whatsoever ... in fact I am about the only person in the business that understands what I do!

* I use the term 'boss' lightly ... only time I saw him in 2018 was for a pre Xmas drink

* They do regard me as a contractor, most definitely

* All 3 contracts I had included a right of substitution

I think the IR35 issue (of which I clearly don't have a good knowledge of) is the key issue here. My initial question was designed to seek advice as to how I might go back in the event they tell me 'time's up'. It's clear I have no basis to argue the matter and so I just hope they honour the last contract and give me the 4 weeks.

As for HMRC, maybe I just hope that by closing down my Ltd Co before the end of my Fin Yr (August) will mean I keep off their radar too (if indeed there is anything to worry about)

Thanks again

"I think the IR35 issue (of which I clearly don't have a good knowledge of) is the key issue here."

I'm honestly amazed that after all the years that IR35 has been in existence, debated and challenged, that there are still some like yourself who are not IR35 savvy. I wish you well, but you really need to catch up quickly on the implications of IR35 and try to absorb the very good advice on these fora.

[smalldog]

additional softer points

Few things I keep in my "Im not an employee" listare:
- I am not allowed on the corporate intranet
- Im not invited to any of the "work" events
- Im excluded from all employee comms newsletters and emails
- my user name actually has the abbreviation External consultant pre-fix

I know some of the above doesnt count in the official list of things but its all valid and I would be using them in any argument.

[northernladuk]

Few things I keep in my "Im not an employee" listare:
- I am not allowed on the corporate intranet
- Im not invited to any of the "work" events
- Im excluded from all employee comms newsletters and emails
- my user name actually has the abbreviation External consultant pre-fix

I know some of the above doesnt count in the official list of things but its all valid and I would be using them in any argument.

Always a good idea to keep your focus on these points throughout a gig. They are all fairly minor points but would most certainly be useful as evidence if you need to tip the balance in a close run case. Better to have the main pillars covered which includes a valid and checked contract and try avoid an investigation though.