Ok sat down to give this some thought before replying. Lets see if i get what you are saying
IR declareing you IR35 caught does not mean they are declaring you an employee, but rather a disguised employee
You are also saying because there is normally no contract between the contractor and client (ignoreing direct contracts) that ET would not view you as an employee of the client even if IR declared you a disguised employee
On the surface it seems reasonably logical. But here is my point, law, especially tax and employment law rarely is so simple and straightforward (if it was ir35 would not exist because at end of the day you are either an employee or not) and even less it is logical
To give you an example of how "messed up" employment laws can be, few years ago most online games and services like AOL chat rooms used volenteers to help "police" their games/chat rooms, these people were unpaid and received no benefit in kind. But there was some rules and regs they had to stick to, main important one how many hours per month they had had to do or else lose their position.
On one of these games they changed some things that the volenteers did not like, they refused, were removed from their position and then turned around and sued the game companys in france (well there game companys) and USA (there it was aol) for "emploment rights" (holiday and sickness pay and so forth)
Now for you and me these people would not be employees, they were volenteers giving their free time, but guess what? they won. What was main decideing factor? That they had to work certain amount of hours (in both case's)
Due to things like that i would not be so sure that a contractor could not be declared an employee, regardless of contract, especially a non ir35 compliant contract with the normal "no no" clause's (or working practices) like named contractor, fixed schedule and so forth and hell even better if IR can "ignore" the contract and just take into account the working practices so can the ET. It could swing either way imo
As to IR35's "disguised employee" status, afaik no one has challanged IR in the courts on this particular invented status (correct me if i am wrong, case's i have seen have only challanged if they passed or failed IR's "checklist" not the actual clasification it's self). Thus this calls into question "disguised employee" status it's self, either for or against the client or contractor or agencys depending on the circumstances/target
It's due to all these question marks that it never cease's to amaze me that so many clients and agencys are not trying to do even more than with contracts to make contracts and working practices make it look even more like the contractor is not an employee
IR declareing you IR35 caught does not mean they are declaring you an employee, but rather a disguised employee
You are also saying because there is normally no contract between the contractor and client (ignoreing direct contracts) that ET would not view you as an employee of the client even if IR declared you a disguised employee
On the surface it seems reasonably logical. But here is my point, law, especially tax and employment law rarely is so simple and straightforward (if it was ir35 would not exist because at end of the day you are either an employee or not) and even less it is logical
To give you an example of how "messed up" employment laws can be, few years ago most online games and services like AOL chat rooms used volenteers to help "police" their games/chat rooms, these people were unpaid and received no benefit in kind. But there was some rules and regs they had to stick to, main important one how many hours per month they had had to do or else lose their position.
On one of these games they changed some things that the volenteers did not like, they refused, were removed from their position and then turned around and sued the game companys in france (well there game companys) and USA (there it was aol) for "emploment rights" (holiday and sickness pay and so forth)
Now for you and me these people would not be employees, they were volenteers giving their free time, but guess what? they won. What was main decideing factor? That they had to work certain amount of hours (in both case's)
Due to things like that i would not be so sure that a contractor could not be declared an employee, regardless of contract, especially a non ir35 compliant contract with the normal "no no" clause's (or working practices) like named contractor, fixed schedule and so forth and hell even better if IR can "ignore" the contract and just take into account the working practices so can the ET. It could swing either way imo
As to IR35's "disguised employee" status, afaik no one has challanged IR in the courts on this particular invented status (correct me if i am wrong, case's i have seen have only challanged if they passed or failed IR's "checklist" not the actual clasification it's self). Thus this calls into question "disguised employee" status it's self, either for or against the client or contractor or agencys depending on the circumstances/target
It's due to all these question marks that it never cease's to amaze me that so many clients and agencys are not trying to do even more than with contracts to make contracts and working practices make it look even more like the contractor is not an employee
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