Location of Performing Work - D&C?

[Earlyflash1]

Hi all,

My client has just been taken over by another company. They have now stated that no-one is allowed to work offsite (Employees and Contractors), previously they have been flexible.

My opinion is that this is D&C and am about to start a fight against it (I normally work offsite 2 days/week).

There is no question of the quality of my output, and this is a blanket ban by the new incoming company directors.

Just trying to work out if people feel that it is D&C or not, my personal opinion is that it definitely is, but interested in the general feeling.

Ta.

[NotAllThere]

What does your contract say?

[badger7579]

What does it say in your contract? In mine it states

"The company's method of working will be its own"

There is no other reference to having to be at a location.

[Earlyflash1]

"The Company’s method of work (including devising appropriate working strategies) will be its own and the Company will be entitled to exercise initiative as to the technical performance of the Services;"

Well, that pretty much makes the case quite succinctly.

[Qdos Contractor]

Control can be broken down into 4 areas: how, where, when and (to an extent) what. In the course of an enquiry, HMRC will always ask whether you have flexibility over the location of work. It is therefore an important factor and one which you should always be aware of. There are of course certain circumstances where this will not be possible, i.e. a high security location or the need for constant access to client's systems etc.

The 'how' element, however, is the key one. You should have autonomy over your method of work; in most cases this is relatively easy to argue if we are dealing with a skilled IT contractor. The clause in your contract certainly states that this is the case and if this is reflected in reality you should be alright.

[NotAllThere]

I worked on a contract, where I was three days in the office, two days at home, and so staying two nights away from home a week. If they'd have insisted that I be there five days a week, I'd have done so, but I would not have renewed (or I would have invoked my notice clause, if I'd have had one).

So now you have to weigh the risks and personal factors. You could ask your client, what their response would be, if you were to say that your contract allows you to work remotely, and that if you continue to do so, you won't be in breach, and they are perfectly entitled to invoke their termination clause, with notice, if there is any.

[Earlyflash1]

Thanks for the advice.

I've pumped them an email stating that if they want to control the way in which I work, then this will cause the rate to revert to the 'inside IR35' rate.

I suspect this will close down the discussion pretty quickly.

What's very interesting, is the attitude of the other contractors here, no-one else seems to care one jot. I guess my attitude to IR35 is somewhat different to theirs. Just surprised me that some people can be so cavalier.

[cupidstunt]

What's very interesting, is the attitude of the other contractors here, no-one else seems to care one jot. I guess my attitude to IR35 is somewhat different to theirs. Just surprised me that some people can be so cavalier.

I have noticed that many times over the years. Their reaction often ranges from "Wat's dat then" to " I have a company so IR35 doesn't apply

[ASB]

Thanks for the advice.

I've pumped them an email stating that if they want to control the way in which I work, then this will cause the rate to revert to the 'inside IR35' rate.

I suspect this will close down the discussion pretty quickly.

What's very interesting, is the attitude of the other contractors here, no-one else seems to care one jot. I guess my attitude to IR35 is somewhat different to theirs. Just surprised me that some people can be so cavalier.

Just a minor point; though it may or may not be in your contract you may have a variance to the contract because previously both parties had accepted your working out of the office. Unwritten terms are always difficult to actually prove though.

[ratewhore]

Thanks for the advice.

I've pumped them an email stating that if they want to control the way in which I work, then this will cause the rate to revert to the 'inside IR35' rate.

I suspect this will close down the discussion pretty quickly.

What's very interesting, is the attitude of the other contractors here, no-one else seems to care one jot. I guess my attitude to IR35 is somewhat different to theirs. Just surprised me that some people can be so cavalier.

Good move. I usually just reply to the email confirming that it was sent to me in error as I am not a member of the permanent staff.