Possible IR35 cLAUSE

[aa2006]

I have a contract which is outside of IR35 but recently a new clause/condition has been added

"attendance hours: as per clients instruction"

This to me seems like the client has control over the hours i work, making it less IR35 friendly.

Is their anyway i could reword it to make it more IR35 friendly.

In real lfe the client does allow me to come in anytime between 8 - 9.30 as long as i do the 37.5 hrs per week (The 37.5 hrs are listed in the contract)

Thanks in advance
Asif

[Gonzo]

In real lfe the client does allow me to come in anytime between 8 - 9.30 as long as i do the 37.5 hrs per week (The 37.5 hrs are listed in the contract)

Thanks in advance
Asif

Sounds like that in practice your client does have control over the hours you attend which, I believe, is what HMRC will want to consider in an IR35 investigation regardless of what the contract says.

[Lucifer Box]

Gonzo is correct. In an IR35 investigation the inspector will look at what actually happens on the ground, not what the contract says. If you effectively just turn up for 37.5 hours a week and do whatever your told to do, your position is weak regardless of any fancy contract clauses.

[aa2006]

Is that even the case where 37.5 are the minimum, over the last 6 -7 months i have worked far more hours and not been paid for the extra hrs. As i have agreed to do a piece of work and if it takes more then the standard 37.5 hrs then i would be expected to make the time up myself.

[Lucifer Box]

I expect that would be seen as a positive pointer, yes.

[Gonzo]

Is that even the case where 37.5 are the minimum, over the last 6 -7 months i have worked far more hours and not been paid for the extra hrs. As i have agreed to do a piece of work and if it takes more then the standard 37.5 hrs then i would be expected to make the time up myself.

There are a number of factors to take into account that determine whether HMRC will think that you are a "disguised employee" - but the control that your client exercises over what you do seems to be key here.

If your contract is to supply a specific piece of work then I don't think that there is any need for the number of hours that you will attend to be in the contract.

I don't have any experience of an IR35 investigation though so it would be useful if someone that did could add to this post!

[aa2006]

Thanks for the info everyone, i think the point by gonzo (also seen at other sites)

"the control that your client exercises over what you do"

is the key factor here. I am happy to say the client does have limit control over the work i do. I am given my requirement/design spec and it is left to me how i actually implement it. The client has very little or no say on this. (well that is what they are paying me for)

thanks again
Asif