IR35 + DV implications

[b0redom]

So I assume that a DV cleared position, regardless of what it says in your contract will not let you have:

ROS
Remote working

As these are 2 major IR35 pointers. What's the panel's take on the IR35 status of a DV role requiring DV clearance?

[malvolio]

Not everything is about IR35....

Think about it. If the permie staff are subject to the same restrictions for business reasons, they can't really be used to distinguish between permie and freelancer, can they? Therefore they cannot be used to prove your status as a disguidsed employee.

Also, post Dragonfly, RoS has been rather degraded (although its's still pretty significant). In your case you would clearly have to provide someone with the right skills and current DV clearance, which might be tricky, but that does not stop you having the right to try. MOO and D&C are probably the more important though, and rather more controllable.

Incidentally, remote working per se is not a pointer; your right to decide for yourself where you work means there is no D&C on that aspect of your engagement.

[s2budd]

Secure sites requiring DV are very good apparently for IR35 after speaking with
Bauer & Cottrell about this very subject. So long as the contract is Ok regarding IR35 then the actual working practices are not relevant.

Inspector: So what do you perform at client site?
Contractor A: I am afraid that I can not tell you.
Inspector: Are you directly controlled by the end client?
Contractor A: I am afraid that I can not tell you.
Inspector: Which location do you work at?
Contractor A: I am afraid that I can not tell you.
Inspector: I would like to speak with you regarding contractor A?
End Client: I am afraid that is classified.

You get the picture.

[Fred Bloggs]

Secure sites requiring DV are very good apparently for IR35 after speaking with
Bauer & Cottrell about this very subject. So long as the contract is Ok regarding IR35 then the actual working practices are not relevant.

Inspector: So what do you perform at client site?
Contractor A: I am afraid that I can not tell you.
Inspector: Are you directly controlled by the end client?
Contractor A: I am afraid that I can not tell you.
Inspector: Which location do you work at?
Contractor A: I am afraid that I can not tell you.
Inspector: I would like to speak with you regarding contractor A?
End Client: I am afraid that is classified.

You get the picture.

Wonderful, I'd never have thought of that!

[Mailman_1]

If you get investigated by HMRC, the investigator needs to have equivalent or higher clearance also (so im told).

[PhilAtBFCA]

IR35 and DV

b0redom

ROS is as valid as its ever been as a non-employment indicator in IR35 status cases, and no case has changed the original decision in 1968 of Ready Mixed Concrete where the requirement to give Personal Service was one of the three "irreducible minimums" required to show a contract is one of employment.

The other two is where you need to focus then which is Control and Mutuality of Obligation.

Of these two I would suggest focussing on Control.

To be outside IR35 only one of the irreducible minimum of three need to be missing.

In a DV contract I would pay and take comprehensive advice from an independent legal and taxed based company, its a very specialist area.

I hope that helps.

Phil

[Incognito]

b0redom

ROS is as valid as its ever been as a non-employment indicator in IR35 status cases, and no case has changed the original decision in 1968 of Ready Mixed Concrete where the requirement to give Personal Service was one of the three "irreducible minimums" required to show a contract is one of employment.

The other two is where you need to focus then which is Control and Mutuality of Obligation.

Of these two I would suggest focussing on Control.

To be outside IR35 only one of the irreducible minimum of three need to be missing.

In a DV contract I would pay and take comprehensive advice from an independent legal and taxed based company, its a very specialist area.

I hope that helps.

Phil

Phil,

The fact that the OP may well be DV'd is Restricted information in itself. Discussing his role with someone who holds no clearance isn't really advisable and could actually be construed as a breach of the Official Secrets Act.

Incognito

[scooby]

what do you class as control?

I determine the project approach, the timelines, delvierabels etc. However as all projects are always delivered to someone responsible for them, they have a say on scope and sign off of budget. isnt that d&c or is that my Terms of reference?

I take my own time off when the project allows, but i do notify the client of the dates. I work my own hours coming and going when i need / please.

Direction and control is always one that has confused me...

[malvolio]

It confuses a lot of people, including employer and lawyers...

Very broadly, it's your client's abilliity to dictate terms and conditions of work that are not business-related; what hours you must be on site or take breaks, for example. However, while they can clearly direct you to deliver a given outcome, they can't necessarily direct you as to how to do it, although they can insist you work to given guidelines and standards.
The usual example is the Heart Surgeon. The Hospital can say they want him to perfrom ten ops a week and not kill anyone. As long as he is allowed to use whatever procedure he sees fit to acheieve that aim, then there is no control.

Given some of the confusions around AWD and realted legislation, it would be good is Control wre formally defined. One idea I've floated in another place is to have in the contract "You, Mr Client, exercise Control over this worker" and then add "As a result you are liable for unpaid taxes". That might close this particular circle...

[scooby]

It confuses a lot of people, including employer and lawyers...

Very broadly, it's your client's abilliity to dictate terms and conditions of work that are not business-related; what hours you must be on site or take breaks, for example. However, while they can clearly direct you to deliver a given outcome, they can't necessarily direct you as to how to do it, although they can insist you work to given guidelines and standards.
The usual example is the Heart Surgeon. The Hospital can say they want him to perfrom ten ops a week and not kill anyone. As long as he is allowed to use whatever procedure he sees fit to acheieve that aim, then there is no control.

Given some of the confusions around AWD and realted legislation, it would be good is Control wre formally defined. One idea I've floated in another place is to have in the contract "You, Mr Client, exercise Control over this worker" and then add "As a result you are liable for unpaid taxes". That might close this particular circle...

Cheers Mal. that was my interpretation, but its good to have it supported.