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IR35: SDS and Sow?

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    IR35: SDS and Sow?

    Hi all. This is my first post so take it easy on me!

    My agency is re-issuing my contract due to IR35 changes that are coming in. They have updated my contract which includes a Statement of Work (SoW) and the end client is also going to issue a Status Determination Statement (I completed mine and found my working practices to be outside IR35).

    Is it normal for an agency to use a SoW in addition to an SDS from the end client? I though that if the end client issues an SDS which is outside IR35, and that correlates with the workers outside SDS (i.e. me), then the contract can be considered an outside engagement?

    #2
    Originally posted by Dysanovici View Post
    Hi all. This is my first post so take it easy on me!

    My agency is re-issuing my contract due to IR35 changes that are coming in. They have updated my contract which includes a Statement of Work (SoW) and the end client is also going to issue a Status Determination Statement (I completed mine and found my working practices to be outside IR35).

    Is it normal for an agency to use a SoW in addition to an SDS from the end client? I though that if the end client issues an SDS which is outside IR35, and that correlates with the workers outside SDS (i.e. me), then the contract can be considered an outside engagement?
    A SoW just adds more evidence to support their SDS.
    Read the SOW and understand it. It's what you deliver. If it's not on the SOW you don't do it. If you do, the client may issue a new SDS to reflect the change in working practises.
    Your SDS has no value.



    See You Next Tuesday

    Comment


      #3
      Originally posted by Dysanovici View Post
      Hi all. This is my first post so take it easy on me!

      My agency is re-issuing my contract due to IR35 changes that are coming in. They have updated my contract which includes a Statement of Work (SoW) and the end client is also going to issue a Status Determination Statement (I completed mine and found my working practices to be outside IR35).

      Is it normal for an agency to use a SoW in addition to an SDS from the end client? I though that if the end client issues an SDS which is outside IR35, and that correlates with the workers outside SDS (i.e. me), then the contract can be considered an outside engagement?
      You are mixing two completely different things up which is rather frightning.

      You should have been working to a SoW all along. It's kinda fundamental to what we do and being outside. To avoid being a bum on seat being told what you should be doing you should have a clear statement of work about what you will be delivering in your time there. That gives a start and and end point which perms don't have. It's also there to set the boundaries of whatever else you should not be doing i.e. being under D&C. You should be making sure you've got one since the dawn of IR35. If you haven't then you've been inside all along. Worries me how you filled in CEST if you don't undersand the SoW concept.

      That SoW sets out what you will deliver to the client. The SDS just states how i.e. inside or outside. You could carry out the SoW with no ability to Sub, total D&C and so on and be inside or you could have RoS, lack of MoO, no D&C and be outside. They SDS and SoW utterly different things but both need to be present whatever the determination.

      Bit worrying you don't get this but you are telling CEST you are outside.

      I though that if the end client issues an SDS which is outside IR35, and that correlates with the workers outside SDS (i.e. me), then the contract can be considered an outside engagement?
      So reading what I put and then re-reading your comment above do you get it now? You can be outside yes... but doing what? You've not agreed what you will be delivering to your client i.e. a statement of work. If you expect to rock up with a job title and be told what to do then you are inside and you've filled CEST in wrong.

      Although you've now got a (rather questionable) SDS saying you are outside you still need to know about IR35 and act like a supplier. You can't carry on bumbling on and getting lucky like this.
      'CUK forum personality of 2011 - Winner - Yes really!!!!

      Comment


        #4
        Originally posted by northernladuk View Post

        You are mixing two completely different things up which is rather frightning.

        You should have been working to a SoW all along. It's kinda fundamental to what we do and being outside. To avoid being a bum on seat being told what you should be doing you should have a clear statement of work about what you will be delivering in your time there.
        <snip>
        frightening

        To be fair to the OP, a SOW isn't the only form of document that defines what is to be done. It could equally be in a contract schedule, or, more rarely, the contract itself.
        /pedantry
        See You Next Tuesday

        Comment


          #5
          Originally posted by Lance View Post

          frightening

          To be fair to the OP, a SOW isn't the only form of document that defines what is to be done. It could equally be in a contract schedule, or, more rarely, the contract itself.
          /pedantry
          Thank you and you are correct but the OP appears to missing the basic concept of the docs rather than what they are called
          'CUK forum personality of 2011 - Winner - Yes really!!!!

          Comment


            #6
            Thanks for detailed answers all.

            I am aware of the difference between a SoW and an SDS.

            I probably should have been more explicit in my question - I wanted to know whether if I find my SDS to be outside IR35, and the client also determines the SDS to be outside, is that enough to get an outside IR35 determination. I realise that a SoW strengthens the case (and indeed should really be a requirement for the contract), but I was just wondering if it was necessary if both SDS' return an outside result. I know of many other contractors who have just been relying on a CEST assessment from themselves and their client (yes, I know that CEST cant be trusted).

            As for SoW, I've been contracting for 5 years now and none of my previous clients (FTSE-100) companies would create one, though now that IR35 is coming to the private sector this is changing. Yes, I realise that a SoW should be part and parcel of a contract, but this has not been the case for the contracts I've had nor for any of the other contractors I've worked with in these companies.

            Comment


              #7
              Originally posted by Dysanovici View Post
              Thanks for detailed answers all.

              I am aware of the difference between a SoW and an SDS.

              I probably should have been more explicit in my question - I wanted to know whether if I find my SDS to be outside IR35, and the client also determines the SDS to be outside, is that enough to get an outside IR35 determination.
              Yes it is. HMRC have produced a test and said they would stand by the result *cough* so the process has been followed properly. All that is left to do is for you to continue to be diligent around your own IR35 status while on site rather than just bury your head and get on with it. Yes the liability will rest with the client but that is no reason to start acting inside and end up with a mess. I imagine over time the HMRC will come back to investigating cases and you destroying your own IR35 status will be raised by the client if they are on the hook in an investigation.

              I realise that a SoW strengthens the case (and indeed should really be a requirement for the contract), but I was just wondering if it was necessary if both SDS' return an outside result. I know of many other contractors who have just been relying on a CEST assessment from themselves and their client (yes, I know that CEST cant be trusted).
              Get it in to your head that it is always necessary period. Forget the IR35 issue. Make sure you've got one just to protect yourself. If you get in to that mindset then the IR35 implications are irrelevant. It is and has always been good practice.
              As for SoW, I've been contracting for 5 years now and none of my previous clients (FTSE-100) companies would create one, though now that IR35 is coming to the private sector this is changing. Yes, I realise that a SoW should be part and parcel of a contract, but this has not been the case for the contracts I've had nor for any of the other contractors I've worked with in these companies.
              It would be interesting to know how many of those previous clients are determining some or all of their contractors inside. If the agent/client hasn't provided one in the past then they must have given you with a job spec or were directing and controlling you so your IR35 status has always been at risk. Did you get all your previous contracts checked by QDOS and the like. Did they never highlight this?

              If they don't provide one you create one and send it back with the documentation. It's a two way document that can be written by either party.
              'CUK forum personality of 2011 - Winner - Yes really!!!!

              Comment


                #8
                Originally posted by Dysanovici View Post
                Thanks for detailed answers all.

                I am aware of the difference between a SoW and an SDS.

                I probably should have been more explicit in my question - I wanted to know whether if I find my SDS to be outside IR35, and the client also determines the SDS to be outside, is that enough to get an outside IR35 determination. I realise that a SoW strengthens the case (and indeed should really be a requirement for the contract), but I was just wondering if it was necessary if both SDS' return an outside result. I know of many other contractors who have just been relying on a CEST assessment from themselves and their client (yes, I know that CEST cant be trusted).

                As for SoW, I've been contracting for 5 years now and none of my previous clients (FTSE-100) companies would create one, though now that IR35 is coming to the private sector this is changing. Yes, I realise that a SoW should be part and parcel of a contract, but this has not been the case for the contracts I've had nor for any of the other contractors I've worked with in these companies.
                I expect that what you will get will vary from client to client. They will handle the onset of the new legislation in the way that suits them, whether they go risk averse with blanket bans on PSCs, contractors, etc or the other extreme of going into detail on how to keep their contractors outside or inside based on what their engagement entails. It could be that inside then has to go via agency payroll, umbrella or even converted to an FTC, while outside would continue as normal.

                The onus and risk is all on the client, so they need to get it correct. If I was an agency, I'd be working to educate them to keep the best contractors active on my books at my clients.
                The greatest trick the devil ever pulled was convincing the world that he didn't exist

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