Inside IR35 - should end client pay unconditionally for contractor being available?

[BlasterBates]

You need to check the contract, if you are paid per hour and there is no clause regarding minimum hours then basically no; it is no different than a zero hours contract, but you could try the angle that the agency/client was unreasonable and sue for damages. I don't think this is worth the effort. I would move on.

[chicane]

Thanks NLUK and Malvolio - very valid points. It just goes to highlight the hypocrisy of the legislation but I'm sure that's been covered more than adequately elsewhere.

Here's another example. You'll be expected no to work during xmas and bank hols as the client offices are closed. Exactly the same thing.

NLUK I agree with your points in general but I'm not sure that the situation I've described is "exactly the same thing" as not working on Christmas and bank holidays. The situation I've described is an unexpected one that comes about as a surprise to both client and contractor rather than something that's been planned for.

Regardless of the contracts in place, and as is often the case in practice, a certain amount of tolerance and compromise would be needed from all parties involved to ensure that all relationships involved are able to continue in a positive way.

[malvolio]

There is never an absence of MoO. All you can aim for is an irreducible minimum, as per RMC.

Putting that to one side you are still an on-demand resource, not a wage slave. You should not expect to be paid if you haven't done anything unless you have a contractual retention clause -which to my mind is unlikely

The point is, you have to negotiate the Ts&Cs, "rights" are not part of the equation.

[northernladuk]

This would certainly be a reasonable conclusion to jump to, wouldn't it! If outside IR35 has to mean the absence of MOO, then inside IR35 must mean the presence of MOO.

No it wouldn't. There could be other factors that put it inside. There could still be a ascence of MoO but no RoS etc.

The interesting thing is that the agency also has skin in the game and they're obviously interested in getting their cut of the day rate. In practice I imagine this would come down to a discussion between the contractor, agency and end client to find an arrangement that works for everybody involved.

Here's another example. You'll be expected no to work during xmas and bank hols as the client offices are closed. Exactly the same thing. You can't work because the client is off so you don't get paid. That's in your contract so yes, they can roll you off as they need to.

[chicane]

Thanks for your responses - interesting reading.

I don't think IR35 (or the Off-Payroll Working Rules, aka Chapter 10) has any bearing on this, since it's tax legislation (ITEPA), not about employment rights (in case that's what you were wondering), and umbrellas are out of scope anyway (since PAYE is being applied). It's really a contractual issue. Your umbrella contract (of employment) will state the circumstances in which you get paid.

Sadly I think you are correct from a technical standpoint. Grossly unfair, but then that applies to the entire legislation.

You've made yourself available to the end client from the agreed contract start date. Your time is committed, and as long as the delay is within the responsibility of the client, you should charge (unless there is anything to the contrary in the contract, obviously).
Being Inside IR35 there is a level of MOO, which this would point to. If they don't want to pay then they should have taken on an Outside contractor.

This would certainly be a reasonable conclusion to jump to, wouldn't it! If outside IR35 has to mean the absence of MOO, then inside IR35 must mean the presence of MOO.

I'd say this is pretty simple - if they client is willing to sign off the timesheet for that day, then do it. But, i'd also be looking for some productive activity to do for that day.

As for an obligation for the client to do so, i doubt it (but will depend on the specific contract).

The interesting thing is that the agency also has skin in the game and they're obviously interested in getting their cut of the day rate. In practice I imagine this would come down to a discussion between the contractor, agency and end client to find an arrangement that works for everybody involved.

[jamesbrown]

I don't think IR35 (or the Off-Payroll Working Rules, aka Chapter 10) has any bearing on this, since it's tax legislation (ITEPA), not about employment rights (in case that's what you were wondering), and umbrellas are out of scope anyway (since PAYE is being applied). It's really a contractual issue. Your umbrella contract (of employment) will state the circumstances in which you get paid.

[velcro]

You've made yourself available to the end client from the agreed contract start date. Your time is committed, and as long as the delay is within the responsibility of the client, you should charge (unless there is anything to the contrary in the contract, obviously).
Being Inside IR35 there is a level of MOO, which this would point to. If they don't want to pay then they should have taken on an Outside contractor.

IANAL

[Paralytic]

Thanks - any further thoughts on why you'd consider this to be the right thing to do?

I'd say this is pretty simple - if they client is willing to sign off the timesheet for that day, then do it. But, i'd also be looking for some productive activity to do for that day.

As for an obligation for the client to do so, i doubt it (but will depend on the specific contract).

[chicane]

Charge it

Thanks - any further thoughts on why you'd consider this to be the right thing to do?

[chicane]

Need to check your contract. I expect it will still say you are paid per day and they can still let you go.

Thanks for your response.

The question isn't so much about whether the client can let the contractor go - it's more about whether the client would be expected to pay for the contractor while the situation preventing the contractor from delivering is being resolved.

I suppose it all boils down to the fine print of the umbrella employment contract as you've suggested, despite the fact that in most cases the umbrella contract will be a generic one not tailored towards the specifics of the situation.