HMRC lose ir35 case

[Denny]

Could someone do me an executive summary? I lost the will to live about 1/3 of the way in.

My posts are for readers who have progressed from reading Janet and John and can handle reading material that has more than 10 words on a page.

[oracleslave]

I doubt that is a correct interpretation.
I doubt there was any status update from the contractor

I doubt the validity of your guesses as to the real facts.

[r0bly0ns]

My posts are for readers who have progressed from reading Janet and John and can handle reading material that has more than 10 words on a page.

Sorry, I faded out after


"My posts are for readers who have progressed from reading"

[DiscoStu]

My posts are for readers who have progressed from reading Janet and John and can handle reading material that has more than 10 words on a page.

can be bothered to read dull, boring, tedious diatribes...

[SueEllen]

can be bothered to read dull, boring, tedious diatribes...

Play nicely.

I did give a summary.

[Denny]

can be bothered to read dull, boring, tedious diatribes...

If you haven't read it because you can't be bothered to, how do you know it's dull, boring and tedious?

Aren't you describing yourself, not my writing?

[Spoiler]

Is it not a little tricky though to get the upper contract to match the important elements of the lower one. The contractor isn't going to get a look at it to confirm.

It would seem a certain amount of trust must be placed in the EB (no worries there then!).

[Ardesco]

The thing that gets me, is that it is in the interest of the end client to make sure the contract is blatantly outside IR35.

If the contract is IR35 caught you could theoretically argue that since you have been classified as IR35 caught you are by default entitled to employment right with the company in question and then demand holidays, sick pay and a job as a result.

Most companies hire contractors to get away from these things........

[Denny]

Is it not a little tricky though to get the upper contract to match the important elements of the lower one. The contractor isn't going to get a look at it to confirm.

It would seem a certain amount of trust must be placed in the EB (no worries there then!).

Indeed it can be, but some EBs will let you look, so it's worth asking. If they flatly refuse you can assume that it's not compatible or else you could ask if they would send it to your contract reviewer in confidence of you seeing it so that the lawyer can be assured. I fail to see why they would refuse, if they are sure that the ir35 compliance arrangements are genuinely in place with the client. To test further, if they refuse to do either of these things, just ask them to confirm in writing that the upper contract reflects the lower one and to specifically state that it's your company that is being represented not you - write out how you want it to be written in the contract as well, to avoid confusion and reinterpretation. Not foolproof, but does give a bit of ammunition if an investigation takes place and could help bring a lawsuit to the EB if they lie about it, should it be uncovered that this was not the case. However, a successful claim would depend on the EBs actions being solely responsible for the ir35 case loss and not a number of factors - which is likely to be the reality leading to material losses generated by the backtax owed plus charges and interest. Chances are the EB will refuse to confirm in writing as well, stating that it's not their policy to do this or disclaiming any responsibility for what they say if they do (making the statement pretty benign) and then you can assume that the two aren't the same at all - most probably concerning the RoS in practice with your name is personally represented as the service giver on the upper contract and possibly some mention of D&C as well. It is illegal for EBs to misrepresent this situation to contractors, but they do - routinely I expect. Lawspeed did tell me some time back that the upper contracts do reflect the lower ones most of the time, but I am not persuaded when I have recently experienced at first hand what a tough job it is to get them to agree upper contract changes even if they are eventually made.

[Denny]

The thing that gets me, is that it is in the interest of the end client to make sure the contract is blatantly outside IR35.

If the contract is IR35 caught you could theoretically argue that since you have been classified as IR35 caught you are by default entitled to employment right with the company in question and then demand holidays, sick pay and a job as a result.

Most companies hire contractors to get away from these things........

The whole gripe about ir35 is precisely because these two things can and are separated. You are employed for tax purposes only.

The idea of hypothetical contracts of employment have nothing to do with the rights issue of genuine de facto employment, which is grounds for the whole legislation to be repealed. Besides, even if there were rights in place, they could be successfully defended in an ET on the grounds that the rate you were paid covered the benefits and that you would otherwise be paid if a staff member and that you were in the role less than a year (when rights for things like unfair dismissal or constructive dismissal start to kick in). So effectively, being a contractor on site less than a year doesn't amount to any more security than it would for a fixed term employee or even a permie staff member.