Work in Banking? Don't worry about the blanket ban you were probably inside all along

[jamesbrown]

Fine but so far doing everything on your own independently was enough to prove lack of SDC, are we saying this is not enough now? And that someone asking you how it's going is somehow control?

No it isn't and never was. What matters is whether the client has a right to exert overarching control and what that right looks like in practice. Think of it like a RoS (which is obviously separate from control, FAOD). It works both ways. It is hard to prove a negative, which is why energy is expended at any tribunal attempting to "look through" the contract and partial evidence from the WPs to understand the reality of the situation and not simply what may or may not have happened. It's perfectly possibly that a client reserves the right to an incredibly onerous and fine-grained level of control, but a particular PM chooses not to exercise it. What do you think matters in that case? It isn't what happened.

Again, fine and this is how I assumed MoO works, but what if none of those interruptions actually happen? Say you get a contract for a month, there's enough work for a month and you don't can it for a month, but instead complete the work, is this now MoO? HMRC can claim the same bulltulip like with RoS, that just because it's in the contract isn't enough. What if the client say they could've moved you to smth else if they wanted?

Again, the test is an irreducible MoO. All of these tests take place within the context of a hypothetical contract. This is why IR35 is so hard to understand for the average person, because there's copious amounts of "looking through" and "stepping back" and attempting to "understand the reality of the engagement in the round", not just what the contract says and what may or may not have happened over the contract term, but would could have happened within the terms understood.

[dsc]

So unless you've declined work outside of the SoW to prove lack of SDC, did actual substitution to prove RoS and left half way through a contract cause you simply no longer like the work to prove lack of MoO you are basically inside? or am I missing some other methods to prove RoS and lack of SDC / MoO?

[northernladuk]

So unless you've declined work outside of the SoW to prove lack of SDC, did actual substitution to prove RoS and left half way through a contract cause you simply no longer like the work to prove lack of MoO you are basically inside? or am I missing some other methods to prove RoS and lack of SDC / MoO?

Well all this discussion on the basics of IR35 has taken this thread way of topic.

All of these have been discussed ad inifinitum over the last 20 years so a wealth of knowledge on here.

Use the google search engine method to go find the threads that discuss each in detail. Type the following in to google

ROS(for example) site:contractoruk.com/forums

And we can try get this thread back on topic.

[dsc]

This is very much on topic, I was refering to what eek stated early on, that the worrying bit is that all you need is to be monitored and there's your SDC. Same with MoO, all you need is to simply carry out a contract and there's assumed MoO. This kind of turns things upside down imho. Surely in previous cases it was enough to be independent in terms of doing work on your own without supervision and this was deemed as lack of SDC, this case says otherwise which effectively means pretty much all contracts are inside.

[NotAllThere]

This is billed as a rare win. I wonder if there have been cases of a PM at a bank for five year on a few different projects, where they've lost. This could be a win due to something very specific, rather than a general "PMs at banks are always caught".

[eek]

This is billed as a rare win. I wonder if there have been cases of a PM at a bank for five year on a few different projects, where they've lost. This could be a win due to something very specific, rather than a general "PMs at banks are always caught".

I'm not sure http://financeandtax.decisions.tribunals.gov.uk/ lists tribunal judgements and while it's impossible to search to confirm I suspect all judgements are published.

I think is a win because HMRC carefully picked a case they could win - my concern is the judgement is such that it could be widely used down the line....

[northernladuk]

This is billed as a rare win. I wonder if there have been cases of a PM at a bank for five year on a few different projects, where they've lost. This could be a win due to something very specific, rather than a general "PMs at banks are always caught".

I did think that guy at the DWP/Capita was going to be slam dunk caught. I've worked with people like him and there isn't a chance they are working inside.

Only matter of time before HMRC finally found a true permietractor and managed to make it stick.

[vwdan]

I'm not sure http://financeandtax.decisions.tribunals.gov.uk/ lists tribunal judgements and while it's impossible to search to confirm I suspect all judgements are published.

I think is a win because HMRC carefully picked a case they could win - my concern is the judgement is such that it could be widely used down the line....

Does this judgement set any precedent? Legal precedent I mean?

[eek]

Does this judgement set any precedent? Legal precedent I mean?

Not binding - but difficult to argue against.

[WordIsBond]

How many people have a CoA and can you be sure the right person has signed it so it will stand up in court. I'd imagine 90+% of the few CoAs out there won't stand up.

It doesn't have to stand up in court as far as winning the IR35 case, for the purpose under discussion. All it has to do is show reasonable care, if the company is closed.