Is this clause IR35-proof ?

[markbagus]

Hi there.

I am new to contracting, and am hoping someone can tell me whether the following part of a contract complies with being outside IR35. I think it might - but am not sure as it imples I am not totally free to do what I want on an assignment. However, how far does the 'control' principle have to go?


8.1 The Temporary Worker is not obliged to accept any Assignment offered by the Employment Business but if s/he does so, during every Assignment and afterwards where appropriate, s/he will: –

a) Co-operate with the Client’s reasonable instructions and accept the direction, supervision and control of any responsible person in the Client’s organisation;

b) Observe any relevant rules and regulations of the Client’s establishment (including normal hours of work) to which attention has been drawn or which the Temporary Worker might reasonably be expected to ascertain;

c) Take all reasonable steps to safeguard his or her own health and safety and that of any other person who may be present or be affected by his or her actions on the Assignment and comply with the Health and Safety policies and procedures of the Client;

d) Not engage in any conduct detrimental to the interests of the Client;

e) Not at any time divulge to any person, nor use for his or her own or any other person’s benefit, any confidential information relating to the Client’s or the Employment Business’ employees, business affairs, transactions or finances.


I would really appreciate some advice on this issue.

Thanks for you help.

Mark.

[Qdos Contractor]

No, this is definitely not IR35 compliant.

Firstly, and fundamentally, the contract doesn't seem to be with your limited company. Who is the 'Temporary Worker'? I guess it is you as an individual, which would need to be changed. An IR35 friendly agreement obviously has to be between two companies.

There is also far too much control by the client. Someone operating outside of the IR35 legislation certainly should not be under the 'direction, supervision and control' of the client. Along with substitution and MOO, control a key aspect of compliancy and this clause would undoubtedly be attacked by HMRC. 8.1b) also shows a level of integration and control by the client.

I suggest you send the contract to an expert (not the Revenue) for IR35 review as I'm assuming wholesale changes are required to the rest of it!

[TheFaQQer]

No - key things I'd take issue with:

"Temporary Worker" - who's that then? This is a B2B contract, surely!

"and afterwards" - so I should co-operate with the client after the contract has finished?

"accept the direction, supervision and control of any responsible person in the Client’s organisation" - D&C

"Observe any relevant rules and regulations of the Client’s establishment (including normal hours of work) to which attention has been drawn or which the Temporary Worker might reasonably be expected to ascertain" - oh, so act like a permie then!

Don't sign it, don't turn up if this is in place, get it reviewed, and agree a new contract before you start work, or you're goosed.