Should I be voicing that I'm under utilised?

[SteelyDan]

Of course, doesnt apply if you're already PS Inside IR35.....

Good point.

Err...you feeling ok?

[TheCyclingProgrammer]

You shouldn't be doing any work that is not defined in your contract. If you are you are under Direction and Control of your client. Having no D&C is one of your main defences against IR35. They are just using you as another employee.

Maybe. It doesn't have to be that way.

If the work defined in your contract is running thin on the ground and they are simply making you to do other things instead then I'd agree this is a D&C and a bit of a hole in your IR35 defence.

But there's nothing stopping you as the contractor from being proactive and asking the client: "hey, I feel like there is more I could be doing for you, is there anything you think I'd be able to help you with?". This is effectively just a negotiation over a variation in the contract. As long as you retain the right to turn down what they offer if it isn't something you want to do then I don't see this as D&C. Depending on the degree of variation you could draw up a new contract schedule but IMO a simple email confirming the additional scope would suffice.

I've done it several times on my current contract and it's probably the reason the contract has lasted as long as it has. My last extension was for 10 weeks to work on a specific prototyping project which as it turned out was done within a couple of weeks. At this point I would have been within my rights to terminate the contract (as would the client) but why would I sacrifice 8 weeks of billing? Instead I spoke to the client, asked them what their current priorities were and discussed where I felt I could help them best - I have experience with UI automation and testing so I offered to help their QA team develop their new automated test suite. A quick email to confirm the new scope and that was it.

[northernladuk]

I agree totally that in an ideal world you will be bought in for a project, deliver it on time and in budget and that will be it; your contract is finished. That probably works much better for devs than it does for infrastructure guys. Let's say that a client asks for your business to build a new VDI platform based on VMware View and carry out a POC with the users. You get in to the gig and with your VDI experience you quickly realise they already use Citrix which would work just as well if a few things were fixed. The client agrees, you do the fixes. You're then well outside the scope of the contract and you are essentially performing maintenance on internal systems, some of which will have to be dictated / lead by the client and their requirements. (downtime planning, etc.)

NLUK if I've interpreted what you've said correctly, you're suggesting that you shouldn't then undertake the work because it's not what the scope was originally?

Not sure how I could have made it any clearer but yes.

Contractors’ Questions: Any IR35 risk to accepting extra work from the client? :: Contractor UK

[northernladuk]

Oh, you mean those sham clauses in practically every contract that stipulate that the client gets to decide who can and who can't be a substitute?

For any real contract, the supplier decides who to send along for the gig, and it's entirely the supplier's responsibility to ensure suitability.

Maybe so but we are talking the theory here. These are also the things that protect you in an investigation. Much of the time it's playing the game fair enough, that goes without saying. That doesn't mean we can just disregard every clause of the contract and treat it all with the contempt you do. That's going to bite you hard if you get investigated.

I'm sure if you ever get investigated you'll fall back to the theory as your defence.

I'm quite happy to go through the theory on here and once people have an idea then they can decide to ignore or mitigate.

Thanks for the balanced approach though

[northernladuk]

Err...you feeling ok?

His post before it was such a pile of steaming pap I felt sorry for him so thought I'd compliment him on the post that was at least half decent.

[northernladuk]

Maybe. It doesn't have to be that way.

If the work defined in your contract is running thin on the ground and they are simply making you to do other things instead then I'd agree this is a D&C and a bit of a hole in your IR35 defence.

But there's nothing stopping you as the contractor from being proactive and asking the client: "hey, I feel like there is more I could be doing for you, is there anything you think I'd be able to help you with?". This is effectively just a negotiation over a variation in the contract. As long as you retain the right to turn down what they offer if it isn't something you want to do then I don't see this as D&C. Depending on the degree of variation you could draw up a new contract schedule but IMO a simple email confirming the additional scope would suffice.

I've done it several times on my current contract and it's probably the reason the contract has lasted as long as it has. My last extension was for 10 weeks to work on a specific prototyping project which as it turned out was done within a couple of weeks. At this point I would have been within my rights to terminate the contract (as would the client) but why would I sacrifice 8 weeks of billing? Instead I spoke to the client, asked them what their current priorities were and discussed where I felt I could help them best - I have experience with UI automation and testing so I offered to help their QA team develop their new automated test suite. A quick email to confirm the new scope and that was it.

Yup, the perfect way to mitigate the issue and play the game. . There is a massive difference between what you've example above and someone just being moved on to other stuff to keep them busy. Just have to be aware of the rules and situation and play the game appropriately.

That said I think you've got to be careful doing this too many times. If they do want to move you on to something so you negotiate and spec the work too many times the working practices will end up looking like a general bod however many emails you have.

[northernladuk]

Welcome to 99% of all IT contracting.

Practically every client uses an IT contractor as "just another employee".

Here's a clue. If you have to be "interviewed" and the client asks about your personal skills relevant to the contract gig, then you're not there as a representative of your company, extolling the virtues of what your company can provide, but you're a disguised employee.

Oh, just remembered, and interesting that BAUMonkeyCandy has liked this post given his history but...

I mentioned this all being theory and playing the game... Remember the JLJ case lost no thanks to him doing extra work. Not all theory then.

IT contractor JLJ in first ever 'split IR35 case' :: Contractor UK

[CoolCat]

just get your timesheet signed and dont worry about it..

[TheCyclingProgrammer]

That said I think you've got to be careful doing this too many times. If they do want to move you on to something so you negotiate and spec the work too many times the working practices will end up looking like a general bod however many emails you have.

I'm already on to my 4th schedule in the last year, I agree you should try and formalise it whenever possible, but is an email to the person who signs the contracts really that informal? It's effectively an amendment, agreed in writing.

What would be better is if you could demonstrate (in writing) a time where a piece of work has been offered by the client, but rejected because you feel it wasn't suitable for your skills (or you simply were not interested) - not only does this show a lack of D&C, I think it also demonstrates a lack of mutuality of obligation for their to be an employer/employee relationship.

[billybiro]

Oh, just remembered, and interesting that BAUMonkeyCandy has liked this post given his history but...

I mentioned this all being theory and playing the game... Remember the JLJ case lost no thanks to him doing extra work. Not all theory then.

IT contractor JLJ in first ever 'split IR35 case' :: Contractor UK

I wasn't aware of this. This is a genuinely interesting case. Thanks for sharing the link.