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

[mogga71]

Because they’re mainly interested in money and the money lies with those that have implicitly admitted they were inside all along, not with BAU tribunal losses, especially now that the end client explicitly agrees (a win here or there doesn’t change the record).

To be fair, the contractors haven't implicitly admitted they were inside .... their clients have done it for them .... in some cases incorrectly.

For what its worth I reckon the HMRC will steer clear of companies that have made blanket inside IR35 assessments and it would open up a horrible bag of crap that would be best avoided. At this point there seems to be question marks over whether it is even legal to apply blanket assessments.

[jamesbrown]

To be fair, the contractors haven't implicitly admitted they were inside .... their clients have done it for them .... in some cases incorrectly.

For what its worth I reckon the HMRC will steer clear of companies that have made blanket inside IR35 assessments and it would open up a horrible bag of crap that would be best avoided. At this point there seems to be question marks over whether it is even legal to apply blanket assessments.

No, the contractor has accepted their new status without a change in working practices, because that is explicitly the situation I’m referring to. If the client is arguing that the reality differed from the contractor’s perception, the contractor is mostly screwed at tribunal (if it gets that far).

[mogga71]

HMRC will focus on those who stay outside for now then in a few years time go back to those who flipped with the same end client. I mean why waste energy on those that have already been run aground when there are active tax dodgers that need to be hunted down.

in a few years time, those who have flipped will have closed down their companies anyway I would guess.

[jamesbrown]

in a few years time, those who have flipped will have closed down their companies anyway I would guess.

Depends. If they’ve moved to an umbrella or become directly employed, yes (but then they’re employed, not inside). Either way, I wouldn’t assume that, under these circumstances, the test for reasonable care or absence of fraud (that would otherwise prevent a transfer of liability from the contractor’s company to the contractor) has been met. Uncertain.

[eek]

Also HMRC have plenty of time to kick off these cases. As you will see in the HMRC Enquiries section they are only now kicking off cases relating to 2015-16.

And HMRC love this approach as it gives them the upper hand - do you have the paperwork relating to things nearly 4 years ago to hand?

[escapeUK]

Also HMRC have plenty of time to kick off these cases. As you will see in the HMRC Enquiries section they are only now kicking off cases relating to 2015-16.

And HMRC love this approach as it gives them the upper hand - do you have the paperwork relating to things nearly 4 years ago to hand?

When you are dealing with something as vindictive and corrupt as HMRC, then its wise to take every precaution. So yeah I can go back 10 years - and thats not the period I suggest, thats when I started. So next year it will be 11.

[Lance]

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

When you are dealing with something as vindictive and corrupt as HMRC, then its wise to take every precaution. So yeah I can go back 10 years - and thats not the period I suggest, thats when I started. So next year it will be 11.

Is it wise to keep any information beyond the statutory minimum?
I’d you don’t have it you can’t be question on it. And the same time frame is the limit for HMRC starting an investigation.

[escapeUK]

Is it wise to keep any information beyond the statutory minimum?
I’d you don’t have it you can’t be question on it. And the same time frame is the limit for HMRC starting an investigation.

Well if you have it you can choose whether you have it or not officially to suit your needs. At least then you can choose if you are damned if you do or damned if you don't.

[Glencky]

I've read this entire thread - and thanks to the OP for starting it. I also read the entire judgement, which it's clear many people on this thread did not! it's only when you read the entire judgement that you can follow the chain of established facts (albeit some of those facts may be disputed by one or other party - but once they're established by the judge as facts, then they're facts) and the reasoning of the thought process that leads to the conclusions.

I'm particularly interested in this case as I'm a programme manager and have worked in financial services my entire career - for 12 years as a permie for one company from grad to leaving, and then for the last 6 years as a contractor. One of the organisations I worked for is Nationwide, for about a year. I've always chosen to operate my contracts inside IR35, albeit still within a PSC with all the flexibility that brings (moving to an umbrella model is very annoying even for me, albeit not as much of a financial hit as it is for others who have typically operated outside).

The reason I chose to operate my contracts inside IR35 - and I did review this decision on a contract by contract basis, every time I had a new contract - was because I have always followed pretty much the same chain of reasoning that is laid out very clearly in this judgement.

From what I know of Nationwide it is highly likely that what Nationwide representative/s have told this tribunal is genuinely accurate, from their perspective, in terms of working practices. From what I know of other large financial services companies, it is exactly the same for people in this kind of role in most of them. Within this I include project and programme levels of all but the very highest levels (and even then, some doubt), business analysts, PMO and the like.

In terms of my own situation, the key material difference between the way I have operated and the way this individua operated was that since contracting, I have genuinely moved from organisation to organisation in line with the projects. In one case I joined to 'rescue' a programme in its late stages and 'get it over the line', and then took a further contract with only a short break to deliver the (inevitable) day 2 programme. But other than that, it's been Organisation 1 9 months; Organisation 2 6 months; short break [the breaks being one of the key reasons I went contracting]; Organisation 3 6 months; short break; Organisation 3 again 6 months plus 3 month extension; longer break; organisation 4; short break; organisation 5 [Nationwide, for over a year, my longest contract]; straight into Organisation 6. All those organisations were widely geographically spread including some work abroad.

So to that extent I was not 'part and parcel' of anyone's organisation unlike the judgements (correctly, I think) made about this contractor, about whom the rather insulting term 'permietractor' could reasonably be applied, from that perspective.

But in all other respects my contracting career has been similar and it was the knowledge that it would be, based on my extensive experience as a hiring manager in an organisation using about 50/50 contractors to permies, that made me confident that if I was scrupulously honest, most contractors in these kind of roles in these kind of organisations would fail the 'SDC' test and in practical terms also likely RoS. I always felt MOO was easier to 'pass' and I kind of 'disagree' with this judgement on that score, it seems fairly clear to me that even within the contract there isn't MOO but then I'll have to bow to the judge's superior knowledge on that one!

Some interesting surprises - in the past, most contractors I know have b1tched about the furloughs whilst simultaneously saying that they are protective about IR35. I hadn't thought about it much because I usually like some time off at Christmas anyway and wasn't bothered about IR35. It's fascinating that here it's viewed as being an indicator of being under SDC.

I think the OP's subject line is about right, personally - a significant number of people probably were (at least, following the case law evolution that will result from this judgement) operating inside all the time. What I do think this makes clear though is it really is those who have stayed for large chunks of time at one organisation who are most at risk - regardless of whether they stay on post-6 April in a similar role on an inside basis or not. In this tribunal the take appears to be only £70k and I find it hard to believe most of that hasn't been spent enforcing it (does the contractor have to pay costs for HMRC though?) In my case, to achieve the same end HMRC would have had to consider 6 organisations over a similar time period with presumably a different situation for each and 6 times the amount of work. It's largely accidentally (in terms of IR35 - it was driven by my desire for variety and NOT to become 'part and parcel' for my own reasons) that I didn't stay at any organisations longer than I did. Anyone who stayed in one place for a long time... well all I can say is I'd be very nervous right now even ignoring the changes that are taking place from 6th April, because this judgement has nothing to do with that.

Me? I'm remembering all the times I had to defend myself on here for my choices and feeling happy I have no historical risk. Fundamentally, it comes down to the thing the judge highlighted in this case. I have always known I had a high degree of autonomy in my roles and some of my contracting roles, the hiring managers have had no idea what I was doing from one week to the next, and that's why they've got me. Come in, sort out a mess, sort out the problems, deliver it. But that is exactly what I used to do as a permie too - I had a high degree of autonomy then, I just also had performance reviews and departmental responsibilities. The fact that you have the autonomy one would expect at a certain level in a professional role - in any profession - doesn't necessarily mean you're not ultimately the wrong side of what is quite a fine line of SDC. And RoS follows from that. I've had RoS in all my contracting roles. There has been no situation looking back where I think I could realistically have exercised it and had it accepted by the client - or even that I could suggest something that could credibly work even half-well to continue the role instead of me. Far better for everyone to cut their losses and just replace me with a candidate of their choice (or live without me for a while, depending on the situation triggering the need for a sub).

As a final P.S. things are evolving very quickly on the remote working front, and the situation in most companies today is very different to 5 and 10 years ago. Particularly with coronavirus! However, when I was a permie hiring manager with a large team of contractors and permies, the organisation generally didn't like remote working, and certainly permies were far more likely to be 'trusted' to work remotely than contractors. In general, contractors would face problems in getting their timesheets signed for remote working, unless it was a rare event and they'd OKed in in advance. I personally never had an issue with it as I only had people working for me - permie or contractor - who I trusted to deliver and I assessed that on outcomes, not presenteeism. However, that was the prevailing culture in my organisation. In some pockets of large organisations it's the same now. And contractors are LESS likely to be 'allowed' to work from home than permies despite often having better reasons (living a long way away, etc). Of course, it's down to you as a contractor whether you allow anyone to be in a position where they 'allow or don't allow' you to do anything. But as is said often on here, that might mean making a choice between being 'allowed' to be in a role or walking! and most people will fundamentally go along with what the person signing the timesheets wants them to do, in that situation...

[jamesbrown]

Fundamentally, it comes down to the thing the judge highlighted in this case. I have always known I had a high degree of autonomy in my roles and some of my contracting roles, the hiring managers have had no idea what I was doing from one week to the next, and that's why they've got me. Come in, sort out a mess, sort out the problems, deliver it. But that is exactly what I used to do as a permie too - I had a high degree of autonomy then, I just also had performance reviews and departmental responsibilities. The fact that you have the autonomy one would expect at a certain level in a professional role - in any profession - doesn't necessarily mean you're not ultimately the wrong side of what is quite a fine line of SDC.

Agree. Very important to remember that SDC is not an absolute thing but a relative thing. For generalists, it's relative to generalist permies and, for specialists, it's relative to specialist permies. The underlying question is always: can you be distinguished from an equivalent permie?