Being forced onsite.

**northernladuk** · 9 November 2020, 19:45

So you have a personal desire to not go on site but you are trying to use your companys obligations to it's client to achieve that? I'm just clarifying that because you've got to be careful you don't go too far in your arguments and spoil the business relationship and don't see what is a reasonable request within the engagement. So onwards...

Originally posted by MonkeysUncle View Post

Hi
So...working for NHS Trust in an outside ir35 role.
Been working from home however the old school tulipy it director wants all IT staff onsite full time (in the middle of a lockdown... Go figure)

In the middle of a lockdown that is in place to keep the NHS from breaking having IT on site would be one of those beyond the ordinary to keep an overburded system working. It is arguable but the enchanced support isn't an unreasonable position. This is an example of where where I think you need to not let your personal desires cloud the business judgement as I mentioned.

I am pushing back but it looks like it may come down to either come on site or walk... Which I'm prepared to do but ideally not.
Got a call scheduled for later this week to discuss with him and the agency.

Fair enough... So you won't go on site. I think this is the core of your negotiations. I doubt waving contracts around will really help much to be honest. They'll either let you or they won't and I can't believe a clause in a contract will change that.

My points...
The role is outside which means he can't dictate working locations.

Erm, no. That statement is wrong IMO. Clients can dictate conditions without it affecting your status, for example, secure sites, above and beyond situations and then there is professional courtesy of attending sites when asked to. It isn't much of an IR35 issue in itself.

What does the contract actually say about working location?

Within the contract it also states

7.1 You acknowledge and agree that as the Company is an independent supplier engaged under this commercial contract for services

e) you shall procure that, subject to the obligations contained in this agreement, the Company and the Representative shall not integrate into the Hirer workforce or submit to control by a Hirer, and that

He isn't integrating you. He's asking everyone in because there is an emergency situation. Again, you have an solution and are desperately trying to find something to justify it. This isn't it.

I am going to say.

1) for me be onsite would put inside ir35 so I want a statement from the legal dept saying they will take responsibilities of all payments/taxes/fees etc should I get investigated and found inside..

Wrong. If they have half a clue they'll laugh this one right off.

Or 2 (if I walk) and to the agency

They are in breach of their own contract and so I am not bound by any notice period or penalties (there shouldn't be any)

Breach? Not really and you have to prove it. Which is going to be very expensive. There won't be any penalties, they'll ask you to leave, either with a period of handover or on the spot. End of. Everything else is too costly to prove.

I don't expect to get 1 but hoping it will put a bit of fear in them and they submit.

Agencies deal with stroppy contractors day in day out. I very much doubt threats based on incorrect reasoning will scare them in to anything.

So thoughts?... Do my points hold any weight?

No.

Also just to add. The agency have an MSP agreement with the trust hence they have been able to put contracts outside.
Having the client exert control I believe also contravenes this so puts their whole agreement into question and possible investigation by HMRC

So what?

My tuppence worth? Wind your neck in and stop with the legal threats and rubbish about IR35. Open up a dialog with them explaining them the reasons you don't want to go on site and back it up with why you don't need to be onsite and then see what they say. Getting all up in their face with IR35 and contract threats won't make much difference IMO.

**vwdan** · 9 November 2020, 19:52

I'd read the state of the market thread and seriously consider if, right now, this is the hill you want to die on.

I'm not saying don't stand up for yourself, but just strongly consider how far you push it.

**jayn200** · 9 November 2020, 20:32

You can refuse to go on site and you won't be in violation of your contract so you would still be due all your money owed up to that point without any damages but they don't have to keep providing you with work either so they may invoke notice period and no longer need your services effectively ending your arrangement with them.

**GhostofTarbera** · 9 November 2020, 20:47

Your arguments are just rubbish when boss wants you onsite

You have 3 options

1.Walk

2.Go onsite and have 40/1 chance of snuffing it when catching covid19

3. Invent you are high risk group (bed wetter, lung issue, fat or bald etc) and happy to return, but if HR could just confirm if this is covered under their insurance

Go for option 3

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**GhostofTarbera** · 9 November 2020, 20:49

Originally posted by MonkeysUncle View Post

Also just to add. The agency have an MSP agreement with the trust hence they have been able to put contracts outside.

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This is also bollocks, how exactly does this put you outside IR35?

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**Lance** · 9 November 2020, 21:11

Originally posted by GhostofTarbera View Post

This is also bollocks, how exactly does this put you outside IR35?

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It’s all irrelevant.
It’s public sector so IR35 status is what the client decides. And also the clients problem if it goes wrong.

To the OP. If they tell you you have to go on-site then walk or go onsite. Don’t argue liabilities as they might realise it’s their problem and start to deduct tax from your pay. I reckon the boss hasn’t twigged the new (2017 or was it 18?) rules.

**northernladuk** · 9 November 2020, 21:13

Originally posted by Lance View Post

It’s all irrelevant.
It’s public sector so IR35 status is what the client decides. And also the clients problem if it goes wrong.

To the OP. If they tell you you have to go on-site then walk or go onsite. Don’t argue liabilities as they might realise it’s their problem and start to deduct tax from your pay. I reckon the boss hasn’t twigged the new (2017 or was it 18?) rules.

Boss ??

**MonkeysUncle** · 9 November 2020, 21:15

Originally posted by GhostofTarbera View Post

This is also bollocks, how exactly does this put you outside IR35?

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By working out an MSP contract. We are effectively employed to the agencies consultancy business and they take on the projects for the trust. So the fee payer becomes the consultancy.
That's how they have worked it so we don't come under the public sector off payroll rules that came in in 2017.

In actual fact we are just bodies supplied to the trust.

NLUK I will reply to your posts but on a phone is not easy so will do it when on the laptop tomorrow.

I take on your point about the strength of the arguments.
I am a PM, not it support. Not customer facing or patient facing.
We are not an acute trust so not dealing directly with covid however I also don't want to take the risk of having to travel into central London every day.

We have 80% of our trust wfh... Apart from IT, 100% of the corporate side is.
There is not justification to be onsite other than (and I quote the it director):
I'm from the North, if I can travel in everyday at 60...so can everyone else.

I don't see why I need to risk myself unnecessarily.

Yes it's a personal decision, one I, as a contractor and Independant entity am entitled to.

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**Lance** · 9 November 2020, 21:21

Originally posted by northernladuk View Post

Boss ??

Well it sounds like a boss.

Being forced onsite.