Shift work - IR35 caught automatically?

[ruth11]

Am considering taking a 6 month role working shifts. 12 hours, 4 days on, 4 days off.

Would you expect this is be inside, or is it possible that it could be outside, IR35?

[Bluebird]

Am considering taking a 6 month role working shifts. 12 hours, 4 days on, 4 days off.

Would you expect this is be inside, or is it possible that it could be outside, IR35?

depends on the reason for working shifts.

If it's 24 hour support split into 2 shift patterns, then I'd say yes.

If it's because you can only perform your duties between say 8pm and 8am then that would be ok.

To look good for IR35 you have to satisfy 3 main criteria.

Can you substitute ?
Is there Direction & Control ?
and MOO ?

The D&C one is the one that would catch you.....

[ruth11]

Yes, it's proper shift support work on a 24/7 basis. That's what I thought about it and that makes it not worth my while.
Thanks

[TheFaQQer]

I'm not convinced that it does make it inside IR35, to be honest.

If the nature of the role is to provide support (for example), then you need to be working when there are users there. This is not a case of direction and control, more a case of no-one could do the job working at different times.

It's been discussed before - ISTR Mal suggesting that even the most mundane shift work can be argued outside of IR35, if you can argue that the shift pattern does not amount to direction and control. If you can argue that you are there to provide support to the users, then it is not an unreasonable assumption that you need to be there when the users are there - the client is not dictating when you are there, or controlling you, but reasonable business sense indicates that you need to work a shift to deliver your contractual obligations.

[malvolio]

Yes, it's proper shift support work on a 24/7 basis. That's what I thought about it and that makes it not worth my while.
Thanks

Ermm....
If you have to work certain hours because otherwise you simply cannot do the job, that's business necessity, not D&C. Shift working does not mean IR35 caught. Don't sign away 20% of your income, or turn down work, without making sure...

[ruth11]

Ok, so being on a rota, working 12 hour shifts (2 days, 2 nights, then 4 days off) doesn't necessarily mean D&C? So what does constitute D&C?

[r0bly0ns]

In it's most basic terms , D&C is the client telling you what to do and when, when there is no sound business reason for having to do that and then.

I.e.:
You have to be at your desk for 9 A.M. to develop this software is D&C

You have to be available to support the users from 9 A.M. because that is when the users require spupport is not D&C

EDIT:
Sorry, the above is not strictly true, there are no set rules for D&C, what I should have said is that the first one is more likely to be deemed D&C and the second wone is less likeley to be termed D&C.

It' all boils down to the contract.
If you are contracted to provide support between 9 and 12 then there is no D&C in my opinion, however if you are contracted to provided 3 hours of support a day, and are then told to do it from 9 - 12, then D&C could be argued.

[TheFaQQer]

In it's most basic terms , D&C is the client telling you what to do and when, when there is no sound business reason for having to do that and then.

I.e.:
You have to be at your desk for 9 A.M. to develop this software is D&C

You have to be available to support the users from 9 A.M. because that is when the users require spupport is not D&C

EDIT:
Sorry, the above is not strictly true, there are no set rules for D&C, what I should have said is that the first one is more likely to be deemed D&C and the second wone is less likeley to be termed D&C.

It' all boils down to the contract.
If you are contracted to provide support between 9 and 12 then there is no D&C in my opinion, however if you are contracted to provided 3 hours of support a day, and are then told to do it from 9 - 12, then D&C could be argued.

That's how I would interpret it, too - the first example seems pretty clearly D&C. The second is fulfilling your contract as a business necessity.

[malvolio]

That's how I would interpret it, too - the first example seems pretty clearly D&C. The second is fulfilling your contract as a business necessity.

Agreed - it's no different to having to go onsite to use the client's kit because they won't allow remote access. The defence is that the constraint, whatever it may be, is necessary to fulfil the contract.

[ruth11]

Cool - thanks chaps. I'll go with it then for now and then if I get it, I'll get the contract checked out.