HR asking for VDU questionnaire, passport & utility bill. IR35 issues ?

[AvsFan]

Been on a contract for a couple of months now and they've just brought in a new HR person who's sent me an e-mail asking to fill out a VDU assessment and supply my passport to confirm my right to work and utility bill to confirm address.

While I can understand the need to fill out the DSE online assessment, I'm concerned these are points that may work against a contractor in terms of IR35.

The DSE online assessment is titled 'DSE Online assessment - Employee guide' (!) & states that "...requires the employer to follow general health & safety practice & make a risk assessment insofar as DSE work is concerned..."

Also, I provided passport details to the agency along with confirmation of address and my service is being supplied to the company via the agency so I don't see why I should supply this information to HR as it should not be relevant to them.

Should I be concerned about filling in a form such as DSE and is it compulsory to do so ?
Am I correct in stating that I should not need to provide passport & utility bill to HR and by doing so is not good for IR35 purposes ?

[speling bee]

Been on a contract for a couple of months now and they've just brought in a new HR person who's sent me an e-mail asking to fill out a VDU assessment and supply my passport to confirm my right to work and utility bill to confirm address.

While I can understand the need to fill out the DSE online assessment, I'm concerned these are points that may work against a contractor in terms of IR35.

The DSE online assessment is titled 'DSE Online assessment - Employee guide' (!) & states that "...requires the employer to follow general health & safety practice & make a risk assessment insofar as DSE work is concerned..."

Also, I provided passport details to the agency along with confirmation of address and my service is being supplied to the company via the agency so I don't see why I should supply this information to HR as it should not be relevant to them.

Should I be concerned about filling in a form such as DSE and is it compulsory to do so ?
Am I correct in stating that I should not need to provide passport & utility bill to HR and by doing so is not good for IR35 purposes ?

Are you working via an agency, out of interest, or direct?

[malvolio]

Are you working via an agency, out of interest, or direct?

Via an agency going by the OP...

Anyway, you can reply along the lines of you are not an employee of theirs and while you will honour the client's H&SE requirements, YourCo is responsible for its staff welfare including such things as VDU Assessments. Equally, if they need proof of your residency and right to work, that has to come from the Agency as the supplier of the services, although YourCo will be happy to confirm that all its staff have been checked for these requirements.

Or take my approach - ignore it until someone not in Human Remains asks you to provide it; that has the benefit of you are then dealing with someone who knows what they're doing.

[SteelyDan]

Don't agree (sorry Mal) with the advice given.

You could make things a little uncomfortable for yourself by not providing the details requested, or not doing the DSE assessment. H&S (DSE) is part of mandatory training, regardless of whether you're a contractor, or perm. The org needs to ensure all people (staff/contractors) have a tick in the box. Failure to comply can mean your removal from site. Other threads on here will confirm it's not an IR35 indicator...please search.

As for providing the passport/utility bill...what's the problem if doing so makes life easier? Have provided this a couple of times to clients as well as agents; no major.

[northernladuk]

Don't agree (sorry Mal) with the advice given.

You could make things a little uncomfortable for yourself by not providing the details requested, or not doing the DSE assessment. H&S (DSE) is part of mandatory training, regardless of whether you're a contractor, or perm. The org needs to ensure all people (staff/contractors) have a tick in the box. Failure to comply can mean your removal from site. Other threads on here will confirm it's not an IR35 indicator...please search.

As for providing the passport/utility bill...what's the problem if doing so makes life easier? Have provided this a couple of times to clients as well as agents; no major.

+1 to that. The fact it's a bit late is odd but it's not something to cause an issue over.

Same with the passport. Company are under the threat of severe penalties for not proving their staff, or anyone working for them is eligible to do so. Can't fault them for wanting to try to cover themselves. Some of them do it better than others. As long as they can confirm my details will be dealt with as per the DP laws then am happy to provide a copy.

What does surprise me is when people bring IR35 in to everything without even attempting to understand it properly. If they can't understand questions like this they prove they know nothing and therefor are not a business. Trying and failing is doing them more damage than ignoring it all completely. Trying to act outside IR35 just by ticking boxes and having a vague understanding is nigh on useless.

[TheFaQQer]

Same with the passport. Company are under the threat of severe penalties for not proving their staff, or anyone working for them is eligible to do so. Can't fault them for wanting to try to cover themselves. Some of them do it better than others. As long as they can confirm my details will be dealt with as per the DP laws then am happy to provide a copy.

When they call a plumber to fix the loo, do they ask him to provide his passport to confirm he is eligible to work in the UK, or do they trust that his employer has done this? If they asked Accidenture to provide professional services, do they check all their passports before they start work, or do they assume that the employer has done that already for their employees?

If they ask all suppliers of services the same questions, then it isn't a differentiator; if they only ask their employees to provide a passport, then it's an indicator that they see you as an employee.

What does piss me off royally though, is ******* morons that can't see past the end of their noses and brings IR35 in to everything without even attempting to understand it properly. If they can't understand questions like this they prove they know nothing and therefor are not a business. Trying and failing is doing them more damage than ignoring it all completely. Providing your passport copy to a client is an IR35 issue? God help us all.

God help those that can't see that treating certain suppliers in the same way they treat their permanent staff is an indicator to being inside IR35.

[TheFaQQer]

Via an agency going by the OP...

Anyway, you can reply along the lines of you are not an employee of theirs and while you will honour the client's H&SE requirements, YourCo is responsible for its staff welfare including such things as VDU Assessments. Equally, if they need proof of your residency and right to work, that has to come from the Agency as the supplier of the services, although YourCo will be happy to confirm that all its staff have been checked for these requirements.

Or take my approach - ignore it until someone not in Human Remains asks you to provide it; that has the benefit of you are then dealing with someone who knows what they're doing.

Absolutely agree. The right to work in the UK needs to be verified by the employer or the supplier of services, not the end client. I would be happy to get the company secretary to provide a letter on company headed paper to confirm that all staff have had their employment status verified by the company before they began work, if that would help, but unless they need to see my passport for security reasons, then there is no need for them to see it.

If the OP has opted into the regulations, then there may be a case for the agency to verify the passport (and they could ask the client to do it for them), but that isn't what has happened in this case.

Ultimately, I'd go with the last paragraph - ignore it because you aren't their employee and just assume that you've been sent it in error, until someone who knows what they are doing comes along.

[TheFaQQer]

As for providing the passport/utility bill...what's the problem if doing so makes life easier? Have provided this a couple of times to clients as well as agents; no major.

It's the difference between "could you do this" and "should you do this".

[northernladuk]

When they call a plumber to fix the loo, do they ask him to provide his passport to confirm he is eligible to work in the UK, or do they trust that his employer has done this? If they asked Accidenture to provide professional services, do they check all their passports before they start work, or do they assume that the employer has done that already for their employees?

If they ask all suppliers of services the same questions, then it isn't a differentiator; if they only ask their employees to provide a passport, then it's an indicator that they see you as an employee.

I am sure here will be agreements in place for bigger suppliers to make sure the client is covered, particularly when using foreign guys n gals so yes the client will have taken steps to make sure they are covered. Dealing with the bums on seats contractors has to be done on an individual basis. Yes agents should do it but we know agents. Would you trust an agent when you have a large fine per head hanging over you or would you just ask that contractor for a copy of his passport. Having a new guy in also sounds like he is giving the system a shake up. The regs do say it covers people in a 'contract of service' as well. This whole thing is such a minor IR35 indicator and so easily defendable it's just not worth considering it.

If you really want to play the game then yes I do agree a letter from your company covering it should be fine but clients HR aren't the brightest bunch.

I just think in situations like this pushing what is factually correct is just not worth it.

God help those that can't see that treating certain suppliers in the same way they treat their permanent staff is an indicator to being inside IR35.

True but in this case as so many others we get on here it's a knee jerk reaction and bring IR35 in to it. A little knowledge can be a dangerous thing... as I so often demonstrate. If someone understands their position as a supplier and the clients responsibilities and so on they would know the answer to the H&S question. It was however a little harsh so I will amend it.

[tractor]

...

I am sure here will be agreements in place for bigger suppliers to make sure the client is covered, particularly when using foreign guys n gals so yes the client will have taken steps to make sure they are covered. Dealing with the bums on seats contractors has to be done on an individual basis. Yes agents should do it but we know agents. Would you trust an agent when you have a large fine per head hanging over you or would you just ask that contractor for a copy of his passport. Having a new guy in also sounds like he is giving the system a shake up. The regs do say it covers people in a 'contract of service' as well. This whole thing is such a minor IR35 indicator and so easily defendable it's just not worth considering it.

If you really want to play the game then yes I do agree a letter from your company covering it should be fine but clients HR aren't the brightest bunch.

I just think in situations like this pushing what is factually correct is just not worth it.

True but in this case as so many others we get on here it's a knee jerk reaction and bring IR35 in to it. A little knowledge can be a dangerous thing... as I so often demonstrate. If someone understands their position as a supplier and the clients responsibilities and so on they would know the answer to the H&S question. It was however a little harsh so I will amend it.

I am in danger of finding a bandwagon to get on here but any statements like this should be qualified with the legal precedent or HMRC quote. Malvolio knows this because he was doing this in the Agency Lies (Opt Out) thread yesterday. I am still waiting for the reference in that one but I doubt if it will arrive as he seems to have ducked out.

Most contracts have asked me to comply with the DSE regs and given that a lot of my contracts are in some way involved in property management or facilities management, I am often required to do the same with respect to Asbestos and other HSE areas. These are HSE requirements. Not HMRC or the WRVS!

As far as a client needing to fulfil their obligations regarding passports etc. it is THEIR butts on the line. They have a responsibility for which they are liable on a personal and corporate basis. How is it possibly a detrimental IR35 pointer if you assist your client in fulfilling THEIR legal obligations?

I dislike the idea of anyone having an electronic copy of my passport from an ID fraud perspective so I have a PDF of the relevant pages with ALL the indentifying marks brushed out with Photoshop. You can use paint if you are skint, it works just as well!

If you are still worried about it, document everything including your objections and keep it with your IR35 defence file as part of your audit trail.

Oh, and as far as relying on a agency to fulfill their part of a contract, how many clients do you think have the same view of agents as we do? Many, I would guess, so perhaps it is appropriate that they take the belt and braces approach.

The most recent case that I can find where HMRC relies on 'part and parcel' is Novasoft Limited v HMRC (2010)

The passage on part and parcel which the tribunal found for the contractor was...

"Whether the worker was part and parcel of the client’s organisation.

61. Mr Brajkovic for Novasoft submitted:

(1) Avecia employees underwent a half to full day induction programme on first joining the company – Mr Brajkovic had no such induction.

(2) He did not attend the mandatory annual staff away-days.

(3) He was not part of Avecia’s staff training programme.

(4) His security pass was a contractor’s pass of a different design to that used by staff, and had an expiry date.

(5) He was not permitted to use the staff car park, even when ample spaces were available.

(6) He was excluded from Avecia’s personal accident insurance cover.

(7) Although he was given an Avecia email address, that was because there was no access to external email on the Avecia IT system.

62. Mr Hall for HMRC submitted that Mr Brajkovic was embedded in the Avecia organisation. Mr Brajkovic reported to Mr Black informally on a daily basis and more formally each week. Mr Brajkovic was a part of the Avecia IT project team structure for over four years. Clause 12 of the Lower Contract states “[Zeneca] has also agreed to provide the same facilities in terms of restaurant, canteen, car parks and other amenities as may be made available to [Zeneca’s] own staff of a similar standing.”

63. We conclude that the notional contract between Avecia and Mr Brajkovic would not have provided for any of the points listed above by Mr Brajkovic. Avecia saw no reason to provide them to Mr Brajkovic while he was at their premises, and Mr Brajkovic saw no reason to demand or negotiate for them. "

I appreciate that there is no mention of the two issues that brought this thread up, I include the reference just to give some idea as to what pointers the revenue consider when asserting 'part and parcel'

The case also demonstrates that a tribunal will call up HR bods (even if they have left the organisation) and they will question them thoroughly - in this case her 'recollection' was off and her statements disproved