IR35 Unfriendly

[Denny]

Denny - thanks for this - regards VMs on-site statements, My client is a bank and I spend most of the time working on their servers, from inside a physical firewall. The client will not allow me the VPN access that 2 other permies enjoy - so I can't work from the desk at home. This absolutely necessitates my being on site and using client equipment. IR35 risk?

If two other permies enjoy access then you need to ask your contract lawyer what this signifies for you as a contractor who is disallowed the same. To me, I would suggest that there is still no physical necessity for you to be on site despite this restriction. This is borne out by the privileges given to the permie staff who are allowed to access the VPN from home if they are doing similar work to what you are doing.

It appears to me that security is being used as a convenient excuse to ensure your hours are being clocked from the site and that you are indeed under client control, albeit unstated. This means that you would indeed be in danger of being IR35 included as a result. Unless you could demonstrate convincingly why contractors are not allowed VPN access for security reasons, I don't think your IR35 exempt status is safe.

It is not enough to distinguish yourself from the permies if the distinction means you are less free to work how, where and when you like (within the parameters of getting the deliverables out on time to the right standard). The distinction only really matters if you are more free to make the choice yourself based on your own discretion even if the permies are also allowed to work from home. Look at the IR35 criteria listings for what they constitute being in business on your own account.

[realityhack]

Hmm... the VPN issue is: IT Security will not allow VPN from non-bank hardware. Bank laptops are understandably only issued to payroll staff, therefore no VPN for me.

The other issue is working on systems which are only accessible from inside our building and through the intranet/internal CMS/DBs. Again restricted to mac address, and bank only.

When I started here I brought my own gear which was unwelcome. I do work at home whenever I can - any documentation or reports, stuff like that, but i'd say 85% of the time is on site. Qdos reviewed my contract as exempt, but this on-site malarkey worries me.

[malvolio]

Hmm... the VPN issue is: IT Security will not allow VPN from non-bank hardware. Bank laptops are understandably only issued to payroll staff, therefore no VPN for me.

The other issue is working on systems which are only accessible from inside our building and through the intranet/internal CMS/DBs. Again restricted to mac address, and bank only.

When I started here I brought my own gear which was unwelcome. I do work at home whenever I can - any documentation or reports, stuff like that, but i'd say 85% of the time is on site. Qdos reviewed my contract as exempt, but this on-site malarkey worries me.

The courts, if asked to make a ruling, will go with the test of "reasonableness" (which is a well understood legal concept BTW). The reasons you have given for not having VPN access are entirely reasonable and would not IMVHO constitute an IR35 fail all by themselves. That you can work form home when possible also points away from this being a major concern.

Stop worrying. The test for D&C is that you can choose to work onsite to get the job done or not (although the latter is rather counter-productive!) for valid reasons: if the contract stated baldly that you will sit here 24x7, then you would have a problem.

[Billy Pilgrim]

I'd say that if it is purely for 'security' reasons then you have no option to be on-site....it it the only place available for you to do the work and should not affect IR35

but a word of caution - banks are strange institutions - a lot of them EXPECT you to be a bum on a seat in their office - and will only cough up the cash based upon the days/hours that you have been on site!!!

Ask yourself - if you had two days to write a test plan for example - did it off site and mailed it to PM or whatever - would there be hell on trying to get money out of them for the two days that they did not see your face on-site????

[Prodigy]

Sorry to hi-jack the thread again, but any thoughts about my situation a few posts ago ??

[realityhack]

Ask yourself - if you had two days to write a test plan for example - did it off site and mailed it to PM or whatever - would there be hell on trying to get money out of them for the two days that they did not see your face on-site????

Heh, no, I'd like to see them try! Not that kind of relationship - they wouldn't balk at a bum-not-on-seat, thankfully.

[mictech]

Being a newbi can you give me a pointer.

Is there a place I can find a standard out of ir35 contract to work from. As i will be caught out by the new tax rules and will probably have to go back to limited co. I would like not to have to go back to paying full taxs.

Food for thought:-
With so many others in my position, I know the tax office is getting rid of there workforce and cannot investigate all the companies out ther now. How will they ever be able to handle another 200,000 new limited companies if everyone leaves the umbrella format.

[Goya]

Is there a place I can find a standard out of ir35 contract to work from.

Join the PCG, they have template contracts available to members.

[malvolio]

Being a newbi can you give me a pointer.

Food for thought:-
With so many others in my position, I know the tax office is getting rid of there workforce and cannot investigate all the companies out ther now. How will they ever be able to handle another 200,000 new limited companies if everyone leaves the umbrella format.

Simple. Gorgon will realise the extent of his new cockup, so will find a way (probably a very inept and amateurish way) to mark small companies and PSCs as artifical tax avoidance mechanisms and apply the same taxation rules he has just imposed on MSCs and Umbrellas.

Of they will win the S660 appeal in June and apply that to the 1.2 million small comapnies that will then fit the revised rules.

Or they will introduce taxation on dividends for small companies.

Just hope this bunch of avaricious, mendacious incompetents get kicked out of office before they do any of the above...

[Denny]

I'd say that if it is purely for 'security' reasons then you have no option to be on-site....it it the only place available for you to do the work and should not affect IR35

but a word of caution - banks are strange institutions - a lot of them EXPECT you to be a bum on a seat in their office - and will only cough up the cash based upon the days/hours that you have been on site!!!

Ask yourself - if you had two days to write a test plan for example - did it off site and mailed it to PM or whatever - would there be hell on trying to get money out of them for the two days that they did not see your face on-site????

This is pure client control and implied MOO (we will only pay you when we can see you are not working and can give you some work to justify paying you for your time) - like temp employed by high street recruiters who employ temps themselves. There is no attempt to respect that the contractor may work more quickly, more efficiently and still be rewarded for getting the deliverables how and when and where they see fit.

With those kind of restrictions in place then contractors would undoubtedly be inside IR35 because their commercial relationship doesn't in any way reflect the criteria set out for exemption on the IR website.