Bribery Act 2010 training - IR35 implications?

[bjh1977]

Hi All,

I've been scanning the web for an answer to a question I have, to no avail. Maybe someone here can help me...

I'm in the middle of a contract with a consultancy firm, who themselves have a contract with a major car maker. My brief is to maintain the car companies CRM system.

I am operating as a limited company, with a website, business cards, and the weight of responsibility that comes with not knowing what I'll be doing once the contract finishes. I operate, as much as is possible, as a contractor. I therefore consider myself to be outside of IR35.

The car company, in an effort to show that they have procedures in place with relation top the Bribery Act 2010, have insisted that anyone associated with the company has to complete their training, and take their test. I don't have a problem with this in isolation.

My issue is the criteria by which they have decided to use to create the list of people who must take the test. They want all [Car Company] personnel to take the test. The distinction between someone who is [Car Company] personnel and who is not is very basic - anybody who has a company mailbox is considered personnel.

I'm worried that if I do the training and take the test, I might indeed be seen as "personnel" not only in the eyes of the car company, but also in the eyes of the taxman, thereby putting me inside IR35.

I have so far refused to take the test. The consultancy company I'm *actually* contracted with have washed their hands of it. They just want me to do the training. I have instead arranged for, and undertaken my own training and test under the auspices of my own company, in the hope that I can convince the car company that I am aware of the act, have had training, and that the best option for me would be to have a clause inserted into my contract with the consultancy company, stipulating that I (or any substitute) must have had this training.

Am I right to be worried, and would you do anything differently if you were me?

[northernladuk]

Man you have to use an ounce of common sense here.

As a consultancy you have just as much responsibility and saftey of the your clients data etc as any permie has. If this training helps you comply with your clients security policies it is going to be a pretty bloody tough investigator that rules you out inside IR35 for taking it.

Digging your heels in and putting yourself in a position that you are a liability to your client just for the sake of IR35 isn't very clever IMO.

Take the test, keep your client safe and happy and just get on with it.

[TheFaQQer]

I think you have two separate worries.

Doing the training and taking the test isn't a big deal. They expect everyone to do it, including their suppliers, so it's not a big indicator that only permies do it. I assume that everyone from the consultancy is doing the test for them, but that wouldn't define them as working for the car company, so it shouldn't do it for you.

Many companies expect everyone on site to go through some procedures - e.g. reading the internet policy and accepting that - and I don't see this as anything more than an extension of that.

The problem, potentially, is if there was an IR35 investigation and the car company sees you as a permanent member of staff. Does taking the test make you one of their personnel? I don't think so. Does them viewing you as an employee potentially cause you problems down the line? Yes.

Are you a member of the PCG? If not, then this scenario would make me sign up pretty sharpish.

I'm not going to give them a link here because I don't want to upset CUK, but another website is blogging a fictional IR35 encounter, where the client seems to view the contractor as permie. Have a google for IR35 chronicles - it's still ongoing but it's an interesting read.

[Clare@InTouch]

I'd agree with NLUK - it's a necessity of the contract, and as long as you have yourself covered in one of the three major areas (Control, Substitution or MOO) plus you're running your business as a genuine commercial concern, then that should be more than enough to balance out any implication that carrying out one training course puts you on a par with an employee.

[SussexSeagull]

Is it an external training provider? If so can't you just offer to pay for the training or even do the same course off site with the same provider?

[bjh1977]

Is it an external training provider? If so can't you just offer to pay for the training or even do the same course off site with the same provider?

The training is online. I could offer to do this, yes. My issue is not so much the training itself, more the fact that I get lumped in with the permies...

[bjh1977]

I'm not going to give them a link here because I don't want to upset CUK, but another website is blogging a fictional IR35 encounter, where the client seems to view the contractor as permie. Have a google for IR35 chronicles - it's still ongoing but it's an interesting read.

I've just read it all - very interesting. I wonder how many contractors that sort of working scenario applies to in reality?

[malvolio]

The usual get out jail free option is to pay for the course yourself, usually by not charging for the time spent attending it (OK, it's online, but you can work something out. Just document the solution). Of itself it's not an IR35 pointer either way , since you have to know it to do the job whether you are a permie or not. However, an employee wouldn't pay for company training, an external consultant always will.

The only exception are the unverally applicable things like HSE, manual handling and the rest that everyone has to do regardless.

[tractor]

..

The usual get out jail free option is to pay for the course yourself, usually by not charging for the time spent attending it (OK, it's online, but you can work something out. Just document the solution). Of itself it's not an IR35 pointer either way , since you have to know it to do the job whether you are a permie or not. However, an employee wouldn't pay for company training, an external consultant always will.

The only exception are the unverally applicable things like HSE, manual handling and the rest that everyone has to do regardless.

This is no different to being expected to comply with HSE, Public Procurement Regs, FSA regs etc All sorts of clients are legally bound to comply with governance. That includes requiring that employees AND suppliers/contractors abide by the same internal controls and procedures.

As has already been said, pay for the course yourself by doing it online in YOUR own time. Document the fact that you have completed the training and not charged for the time. IMHO this will actually be a positive indicator to your IR35 status rather than being a negative indicator to your re-engagement potential.

[CheeseSlice]

The training is online. I could offer to do this, yes. My issue is not so much the training itself, more the fact that I get lumped in with the permies...

I was quite fortunate in my last place. They would send out emails about compulsory training (keeping work secure, etc) but said that all permanent staff and contractors must take this course also. It was reassuring that HR had acknowledged this difference, and that I was actually taking the course for compliance reasons rather than being forced to learn new skills or corporate BS.

...but, then you follow a hyperlink to a "my training" portal on their employee intranet site. This also tells you what your employee ID is and who your line manager is

Ah, but you can't register for any company training other than this, and the training IS provided externally... PHEW