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

[LetterBox]

If you have applied reasonable care (had your contract reviewed and passed as outside by an IR35 specialist) for a project, of which you had a couple of extensions whilst working on the same project, would you still need to get each contract reviewed upon extending (assuming the contract wording remained unchanged)?

I know this is a slightly different situation to the individual in question, but it could be applied to MANY contractors in the future. Especially if they worked for the same client on the same project (which included several extensions) and they were there for 2/3 years+ - how would this be seen any different?

I also noticed that the time period was 2012-2015, I wonder when the initially investigation started. Any idea of knowing what prompted the inquiry?

I strongly suspect that HMRC are looking for those 2/3 years same place, high revenue contractors with a belief that those will be big ticket items, think that's always been the case. Also, if any of them do get to court, the judge, however neutral they are before a case begins, will at least be suspicious and perhaps look for items to suggest employment.

Just by reasoning that HMRC think they have a strong case, to some small degree, guilty until proven otherwise in the judges eyes also.

[CompoundOverload]

I strongly suspect that HMRC are looking for those 2/3 years same place, high revenue contractors with a belief that those will be big ticket items, think that's always been the case. Also, if any of them do get to court, the judge, however neutral they are before a case begins, will at least be suspicious and perhaps look for items to suggest employment.

Just by reasoning that HMRC think they have a strong case, to some small degree, guilty until proven otherwise in the judges eyes also.

I guess they will always look for those that they will get more bang for their buck. Is it easy for them to determine who has been where and for how long? I assumed any inquiry will be based on any anomalies from the Director's SATR and then the probing would begin?

Hence why I was curious why this case came about given it was from 2012-2015...

[northernladuk]

I guess they will always look for those that they will get more bang for their buck. Is it easy for them to determine who has been where and for how long? I assumed any inquiry will be based on any anomalies from the Director's SATR and then the probing would begin?

Hence why I was curious why this case came about given it was from 2012-2015...

Because that is how long an investigation can go on for. People go on about being confident in winning a case. The real win is not being investigated at all. Took 4 years for Batchers case as well I believe.

[Snooky]

Can he go back and ask for three years of holiday pay?

My thoughts exactly.

I think you have to submit an employment tribunal claim within 3 months of employment ending though, so I assume he's well out of time.

But before too long someone, somewhere, who's been thrown under the bus with a SDS is going to drag their client to the ET with a piece of paper saying that as far as their client's concerned, they're an employee in all but name. And that's when things will start to get very interesting

[eek]

My thoughts exactly.

I think you have to submit an employment tribunal claim within 3 months of employment ending though, so I assume he's well out of time.

But before too long someone, somewhere, who's been thrown under the bus with a SDS is going to drag their client to the ET with a piece of paper saying that as far as their client's concerned, they're an employee in all but name. And that's when things will start to get very interesting

I think there are overrides which may mean he is still in time due to extenuating circumstances...

but the interesting bit is actually that bit - it's when the other people in the office ask why is this person being paid twice what I am for doing the same job (which granted is a bigger issue in councils then in the private sector but still).

[perplexed]

My thoughts exactly.

I think you have to submit an employment tribunal claim within 3 months of employment ending though, so I assume he's well out of time.

But before too long someone, somewhere, who's been thrown under the bus with a SDS is going to drag their client to the ET with a piece of paper saying that as far as their client's concerned, they're an employee in all but name. And that's when things will start to get very interesting

Wouldn't client then reply that that are not liable due to the contractor being responsible atm to determine IR35 status and that clearly the client must have provided incorrect information to force an outside determination?

[eek]

Wouldn't client then reply that that are not liable due to the contractor being responsible atm to determine IR35 status and that clearly the client must have provided incorrect information to force an outside determination?

The but before too long bit means sometime after April when the client has imposed that blanket ban.

[LondonManc]

I think there are overrides which may mean he is still in time due to extenuating circumstances...

but the interesting bit is actually that bit - it's when the other people in the office ask why is this person being paid twice what I am for doing the same job (which granted is a bigger issue in councils then in the private sector but still).

Sickness and other benefits, no redundancy, etc.

Max two year stay will definitely kick in, or even 12 months with 3 month gap thereafter before rehire.

[BlasterBates]

Don't you mean too much SDC - Mr Lee had in practicea considerable degree of operational and personal autonomy but was subject to overarchingcontrols primarily concerned with Nationwide’s need as a highly regulated business tomonitor the progress of the relevant project consistent with Mr Lee being a highly skilledemployee.

And I can't see how you escape that in a bank...

I don't see how you can escape that in most large companies. They're all pretty much of a muchness.

[jamesbrown]

Quite true but it isn't as simple as that though. JLJ didn't have multiple contracts and time was a factor in his loss. There are also plenty of roles that aren't project specific out there.

In roles like this people say time isn't anything to do with IR35. This maybe true directly but it's a massive factor in most cases. This one, JLJ and so on.

To say something isn't a factor to an IR35 case when it's been a factor in nearly every loss can't be right.

It wasn't. I think you're coming to this with your personal opinion about what the case law should be, rather than reading the details. Becoming part and parcel was the issue (explicitly, from the judgement), which is merely correlated with length of contract.

RoS and MoO were lost. Then you come to control.

The problem with control for a highly-skilled individual is that the "how" component of control becomes less important as a means of discrimination vs. an employee. There's no new case law here. Specialist employees have plenty of control over "how". No, so for control to be a positive, you need to be in complete control over all other aspects, including the when and where and the absence of an over-arching degree of control and supervision. That wasn't the case here. At best, control is neutral in these sort of cases unless there is an absence of the over-arching degree of control. Then you add in the other things, like being part and parcel, and things aren't looking so rosy on what might otherwise have been a borderline case.