Permie - Contract at existing employer or not? - IR35

**Cowboy Bob** · 17 January 2007, 18:00

It is the general concensus that if it's the same company and you are transferring from permie to contract that you're bang to rights within IR35, whether it's a different department, location, role etc or not.

**Diestl** · 17 January 2007, 19:06

Is their a specified amount of time that elapses then you can go back and do contract work for the company you were permie at?

**ASB** · 18 January 2007, 07:36

[QUOTE]I know that IR35 is determined on a contract by contract basis, but am not sure whether they look at the entire work history too.[QUOTE=spudgun]

The general methodology is to look at things until they can find something that is caught. Overall picture only comes in then.

When I do leave, I am liable to pay back a large relocation payment, and am also liable for NI and IC payments on shares which I have bought through the company plan - I presume this would strengthen the case for being outside IR35 relative to staying with the same company

It would make no difference whatsoever. The only thing that is relevant is the implied contract between spudgun and the client. Obviously if the contract you actually have with them forces personal service you are caughts. If not next thing to chewck is work practices, see if you can be caught that way.

Your possibly going to struggle to be outside IR35 on a contract with your previous employes on an Friday/Monday - but it is not guranteed fail. What you will need is a very good contract and stick to the conditions so you can't get hammered on a different notional contract.

You would be safest going fixed price - financial risk.

**Newby** · 18 January 2007, 08:15

IR35 was set up to stop people doing exactly what you are suggesting. You would have a rare old battle with HMRC inspectors to suggest that you are working in a different way to how you were/are as a permanent employee.

Another point you might want to consider, is that although being a contractor might seem great in terms of cash coming in, the fact that you lose lots of employee benefits, that to replicate as a contractor would cost literally thousands. Oh and dont forget that you have zero employment rights too.

I am not trying to put you off, but its a big decision that you are taking on, without creating an additional issue by working for the same client as you do as a permanent employee.

**The Lone Gunman** · 18 January 2007, 08:24

IANAL, nor an IR35 expert, this is my opinion.

There are two sets of tests which the IR use to determine status. The first set is the old "am I self employed" rules which do the Friday to Monday check.
Then there are the IR35 rules which are contract against reality basis.

I am not sure that the Friday to Monday rule will fail if you are taking on a different role, but it has to be significantly different.

The following is an example so dont go picking up the detail.
If you wrote software for the companies TV division and came back testing software for the Sat Nav division then I expect you would be caught due to the skill set and tools being mostly the same.
If you were doing software and come back as a plumber then there is a clear difference.

**spudgun** · 18 January 2007, 11:13

Thanks for the advice guys

I have decided it is not a good idea for a couple of reasons.

First off, it would not be a good idea politically - the manager would take a lot of flack.

Secondly, I wanna avoid any indication of IR35 and it would just highlight me to the IR.

It is funny though - I am a permie, but of a certain grade - when the role was advertised as a secondment, had I wanted to go for it, HR would have blocked me. Yet on speaking to the manager yesterday - he would have been more than happy to take me on as a contractor!

Its reasons like this and more that I want to go out on my own - I hate being told I can not go for a certain role because I am not a high enough grade, or being allowed to take a role but at a grade lower - till I "prove" myself - currently in that position for almost a year, "proving myself" every day, but when I mention the P word, I am told, we will look into that later etc....

Fully aware of the pitfalls of contracting - finding the challenge at the moment is balancing my CV (sorry "brochure"

)so that it shows the Pimps the keywords they are looking for but shows the hirer that I am not just peddling a load of buzzwords and nothing to back them up. I think for seasoned contractors this skill is one which they may not realise is as valuable as it is.

I had a conversation with a pimp this morning who spent ages trying to tell me ITSM was an application which was better than Remedy because it could be used straight out of the box. He said I had no documented ITSM experience so he felt I was not really what they were looking for - I said, hmmmm apart from the 2 years as a Service Manager and a year as an ITIL implementation analyst I could see where he was coming from and thanked him for his time. ****ing monkeys!

So its onwards and upwards - I am in employment till the end of Feb (but have written confirmation I can leave if I find anything between now and then) - Have a stash to keep me above water till the end of may-ish

P

**Cowboy Bob** · 18 January 2007, 11:26

Originally posted by spudgun

So its onwards and upwards - I am in employment till the end of Feb (but have written confirmation I can leave if I find anything between now and then) - Have a stash to keep me above water till the end of may-ish

If your skillset is as you say it is, then you'll have no problem finding a contract by May. The golden rule is to not just accept the first thing that you're offered. Remember, they want you, not the other way around. Good luck.

**spudgun** · 18 January 2007, 14:45

Originally posted by Cowboy Bob

If your skillset is as you say it is, then you'll have no problem finding a contract by May. The golden rule is to not just accept the first thing that you're offered. Remember, they want you, not the other way around. Good luck.

Thanks for the sentiments - while its all a bit daunting, perhaps the worst part of all about becoming a contractor is the roasting some newbies get here

I have now had 5 agencies call me regarding this role

all of which got the "I am unable to apply for it as I am a permie now" response - not the best intro!

P

Permie - Contract at existing employer or not? - IR35