Autoclenz

[swamp]

I spotted this case and thought it might have a bearing on us re IR35:

http://blogs.mirror.co.uk/investigat...-vital-jo.html

http://business.timesonline.co.uk/to...cle6876571.ece

I'm thinking that this ruling strengthens the position (of HMRC) that working conditions are more important than the contract. Any thoughts, or is this case irrelevant to us?

[northernladuk]

The question arose in the present case as to whether the judge was entitled to infer from evidence that the contract did not genuinely reflect the rights and obligations of the valeters. In her Ladyship’s judgment, the judge was so entitled.

I have my Friday feeling on so might not have analysed this as deeply as I could but from what I see it is a simple matter of unreasonable contract not reflecting the situation.

As it says in the extract above the contract does not reflect rights and obligations (as is) therefore cannot be enforced. That is due to the situation there and not the whole contractor/self employed market. The contract does not cover what they are expected to do i.e. they have an existing role and trying to change contract and not the role.

I think this is totally irrelevant to us as it has no bearing on how the work is delivered or working condition etc. Just a company being unreasonable

I also think the world is a great place and believe in world peace right now cause its Friday afternoon so no flaming my comments if they are stupid!!

[malvolio]

Dragonfly defined the need for reality and contract to be aligned (about the only thing it did get right) and is rather more relevant. But as a general principle, the judgement is probably spot on.

[TheFaQQer]

I think this is totally irrelevant to us as it has no bearing on how the work is delivered or working condition etc. Just a company being unreasonable

No, they key thing from the case is that HMRC can look at what the reality is rather than just the written contract - something that they have always done to determine what the implied contract really was.

So, if you have a right of substitution, but the client wouldn't allow you to make that substitution, then as far as HMRC are concerned, you didn't have a right of substitution. IIRC, that was part of the problem in the Dragonfly case. Part of the problem that we have, though, is that your contract might have that right of substitution in it, and as far as you are concerned, you have a RoS. Unknown to you, the contract between agency and client does not provide a RoS - so in the event of an investigation, the reality of the situation is that you have no RoS (which you don't know until you are about to get royally screwed over). I guess you could then sue the agency...