IR35 exemption safety
1. Ensure that your contract with the EB has no MOO, full rights of substitution, no client control and that your contract Works Schedule names your company not just you personally. It's fine to have Joe Bloggs (Bloggs Limited) but not just Joe Bloggs. Hardly any EB will agree to have just Bloggs Ltd because the client was to ensure that you carry out the work personally, at least in the first instance, even if it's your company they're engaging.
2. Check out your contract with a good impartial contract solicitor - Qdos or Bauer and Cotterall are recommended.
3. Also ensure that the EB has set up back-to-back arrangements with the client and that the client understands your own contract with the EB just as well as their own company's with the EB. This will prevent misunderstandings once you start. You must also ensure that the client will actually allow you to put in a substitute if you need to - even if that is never actually put in practice. If they won't allow you to in principle, then you have problems. In practice, many won't because of security reasons and because your job is so complex that a handover would be impractical. However, provided your client agrees to say that they would if it is at all possible and necessary provided the work allows it and it can be done off site, then that should be fine.
4. Get the EB to specify in writing that the contract is back-to-back. If they refuse, I would assume that it isn't and use a brolly rather than a limited unless you don't mind being inside IR35 as an owner managed business.
5. Once you start the role, start as you mean to go on. If you're given work that can be done just as easily from home then do it from home and give the client an air of expectation that this is normal practice. Don't ask permission, just do it. Make sure you cover off any security issues though by not taking out documents you're not entitled to take off site. Also make sure you get a laptop and router if you need to use the company network. This is not a pointer to IR35 provided you do some of your work on your own computer and that your client knows that you do this and agrees that this isn't a breach of security or the terms of your contract.
6. Ensure during those early days and beyond when necessary to send a few e-mails to your boss late at night and at weekends. This ensure that you are seen to be dedicate to the task at hand and that saving them money and time is more important than fleecing them for full daily fees for only 8 hours of toil.
6. Don't use the staff facilities except the toilets. Only use the canteen if you're invited to lunch as part of a meeting or if the client is paying. If the end client's policy gives you canteen use rights, ignore them if you can't retract them, or else refuse them if you can. Never agree to fill out holiday forms or other admin paperwork that implies that you are part of their organisation and not your own. Refuse to be named on the org chart except as a consultant and make sure your company profile is set up to reflect your contractor status.
7. Come in at hours to suit you, however, in the first month or so high visibility, building trust and relationships is vital. Therefore, it is a good idea to be on site a lot for those particularly reasons only. Make sure that hours to suit means getting in earlier and leaving later, not vica versa. Therefore, put in good hours and produce good work and don't, whatever you do, come in at 9 and start looking at your watch at 6pm when the permies start to put on their coats.
8. Use terminologies that are businesslike. Don't use 'working from home' say 'working out of my home office.' However, it's equally important not to rub other contactors' noses in it by talking too much about your working arrangements and dropping your company name at every opportunity. Otherwise they will resent it and may even cause trouble for you. After all, most contractors are gutless wonders who are too scared to challenge the norm and would prefer to be on-site based for fear of losing their contracts by acting out their contractual arrangements with their EB fully. However, I suspect that most would be viewed as inside IR35 if the IR ever came knocking.
9. When you've got your feet firmly under the table. The client is happy with the way you're working and you're forming good relationships, then start working out of your home office regularly when you have reports to write - but not on set days. Only come in when face to face meetings are set up or if you need to come in to finish a piece of work that actually requires you to be on site (e.g. to use the company mainframe or something). Never do any report writing from the office, it's not necessary.
10. If you're noticing a few raised eyebrows amonst other contractors behaving like permies, then you need to deal with behind the scenes claims of unfairness or someone from HR telling you that it's not fair on the rest of the staff, or other contractors don't normally behave like this.... etc. If this is the case, set a meeting with your client and remind him that you will kill to meet his deadlines, even if it means working 14 hour days for the same daily fee and that when the work is slacker you could put in a day or so for another client, saving the project money. Remind him that the client benefits enormously from this type of working practice. Remind your client that full time working for a B2B contractor simply means you will put their work first every time for the duration of the contract, not that they can always expect to be billed 5 days per week even during slack periods of the time when you can fit in other client work as this assumes a kind of MOO arrangement which disbenefits their company.
Whatever you say, make sure you phrase any explanations in a way that benefits the client not you. Over time the client won't even question your working arrangements but will expect them, even welcome them instead.
It's worked for me and I've been on contract for the same client for the past 7 months in a company that is a hotbed of tedious bureaucracy, set processes and company rules and set HR arrangements with contractors. Mind you, virtual working is the norm, but normally office to office so I guess that part of the company culture helped ease the path.
1. Ensure that your contract with the EB has no MOO, full rights of substitution, no client control and that your contract Works Schedule names your company not just you personally. It's fine to have Joe Bloggs (Bloggs Limited) but not just Joe Bloggs. Hardly any EB will agree to have just Bloggs Ltd because the client was to ensure that you carry out the work personally, at least in the first instance, even if it's your company they're engaging.
2. Check out your contract with a good impartial contract solicitor - Qdos or Bauer and Cotterall are recommended.
3. Also ensure that the EB has set up back-to-back arrangements with the client and that the client understands your own contract with the EB just as well as their own company's with the EB. This will prevent misunderstandings once you start. You must also ensure that the client will actually allow you to put in a substitute if you need to - even if that is never actually put in practice. If they won't allow you to in principle, then you have problems. In practice, many won't because of security reasons and because your job is so complex that a handover would be impractical. However, provided your client agrees to say that they would if it is at all possible and necessary provided the work allows it and it can be done off site, then that should be fine.
4. Get the EB to specify in writing that the contract is back-to-back. If they refuse, I would assume that it isn't and use a brolly rather than a limited unless you don't mind being inside IR35 as an owner managed business.
5. Once you start the role, start as you mean to go on. If you're given work that can be done just as easily from home then do it from home and give the client an air of expectation that this is normal practice. Don't ask permission, just do it. Make sure you cover off any security issues though by not taking out documents you're not entitled to take off site. Also make sure you get a laptop and router if you need to use the company network. This is not a pointer to IR35 provided you do some of your work on your own computer and that your client knows that you do this and agrees that this isn't a breach of security or the terms of your contract.
6. Ensure during those early days and beyond when necessary to send a few e-mails to your boss late at night and at weekends. This ensure that you are seen to be dedicate to the task at hand and that saving them money and time is more important than fleecing them for full daily fees for only 8 hours of toil.
6. Don't use the staff facilities except the toilets. Only use the canteen if you're invited to lunch as part of a meeting or if the client is paying. If the end client's policy gives you canteen use rights, ignore them if you can't retract them, or else refuse them if you can. Never agree to fill out holiday forms or other admin paperwork that implies that you are part of their organisation and not your own. Refuse to be named on the org chart except as a consultant and make sure your company profile is set up to reflect your contractor status.
7. Come in at hours to suit you, however, in the first month or so high visibility, building trust and relationships is vital. Therefore, it is a good idea to be on site a lot for those particularly reasons only. Make sure that hours to suit means getting in earlier and leaving later, not vica versa. Therefore, put in good hours and produce good work and don't, whatever you do, come in at 9 and start looking at your watch at 6pm when the permies start to put on their coats.
8. Use terminologies that are businesslike. Don't use 'working from home' say 'working out of my home office.' However, it's equally important not to rub other contactors' noses in it by talking too much about your working arrangements and dropping your company name at every opportunity. Otherwise they will resent it and may even cause trouble for you. After all, most contractors are gutless wonders who are too scared to challenge the norm and would prefer to be on-site based for fear of losing their contracts by acting out their contractual arrangements with their EB fully. However, I suspect that most would be viewed as inside IR35 if the IR ever came knocking.
9. When you've got your feet firmly under the table. The client is happy with the way you're working and you're forming good relationships, then start working out of your home office regularly when you have reports to write - but not on set days. Only come in when face to face meetings are set up or if you need to come in to finish a piece of work that actually requires you to be on site (e.g. to use the company mainframe or something). Never do any report writing from the office, it's not necessary.
10. If you're noticing a few raised eyebrows amonst other contractors behaving like permies, then you need to deal with behind the scenes claims of unfairness or someone from HR telling you that it's not fair on the rest of the staff, or other contractors don't normally behave like this.... etc. If this is the case, set a meeting with your client and remind him that you will kill to meet his deadlines, even if it means working 14 hour days for the same daily fee and that when the work is slacker you could put in a day or so for another client, saving the project money. Remind him that the client benefits enormously from this type of working practice. Remind your client that full time working for a B2B contractor simply means you will put their work first every time for the duration of the contract, not that they can always expect to be billed 5 days per week even during slack periods of the time when you can fit in other client work as this assumes a kind of MOO arrangement which disbenefits their company.
Whatever you say, make sure you phrase any explanations in a way that benefits the client not you. Over time the client won't even question your working arrangements but will expect them, even welcome them instead.
It's worked for me and I've been on contract for the same client for the past 7 months in a company that is a hotbed of tedious bureaucracy, set processes and company rules and set HR arrangements with contractors. Mind you, virtual working is the norm, but normally office to office so I guess that part of the company culture helped ease the path.
Oh, and don't forget to get a receipt for your pudding. 
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