What is your opinion?

[bangface]

yet here you are trying to tell me the only point Gordo and co will consider was the fact I had opted in!
Mailman

God, you really are a complete nomark. Did you actually read my post and understand the context of it?

You also may want to check out the advice that has already been provided by John Antsell, he has said on a number of occassions on the main page that being opted in or out isnt a contributing factor to being IR35 caught.
Mailman

Oh John Antsell said, so it must be right. Jeez...it's no wonder you are the type of contractor that ends up in the courts!!

Today's poll is: Mailman

Naive or just plain stupid......You decide!!

[Mailman]

God, you really are a complete nomark. Did you actually read my post and understand the context of it?

Why are the boards flooded with children? You my dear child need to read your own rubbish to see what you actually said and what I said was relevant!

Oh John Antsell said, so it must be right. Jeez...it's no wonder you are the type of contractor that ends up in the courts!!

Gee, I wonder...someone who actually is a lawyer v some random numpty who posts on an obscure contractors website...hmmmmm...I think Ill go with the advice of the guy who knows what he is talkin bout!

The simple fact is, if you are opted in or out it makes no difference to Gordo if he comes for you in a IR35 inquisition!

Mailman

[malvolio]

The simple fact is, if you are opted in or out it makes no difference to Gordo if he comes for you in a IR35 inquisition!

Except you haven't noticed that most IR35 decision are based on an accumulation of factors, some big, some small, so it is rather dumb to ignore any of them as irrelevant. Also, and this is the point you keep missing, if you have an opted-in contract, you lose the right to at least two of the key pointers to be outside IR35 - any degree of financial risk and risk of having to do rework for free.

So Opt-in or Opt-out is not a pointer, but it means other important pointers do or don't exist. Now if that's too hard to understand, you really shouldn't be lecturing people. IF you want to stand up as a real business and IF you insist on contracts that match reality, then you will opt-out. Otherwise why did a lot of effort go into making it possible? Oh yes, of course, we're all wrong and you're right. Sorry.

[Denny]

Except you haven't noticed that most IR35 decision are based on an accumulation of factors, some big, some small, so it is rather dumb to ignore any of them as irrelevant. Also, and this is the point you keep missing, if you have an opted-in contract, you lose the right to at least two of the key pointers to be outside IR35 - any degree of financial risk and risk of having to do rework for free.

So Opt-in or Opt-out is not a pointer, but it means other important pointers do or don't exist. Now if that's too hard to understand, you really shouldn't be lecturing people. IF you want to stand up as a real business and IF you insist on contracts that match reality, then you will opt-out. Otherwise why did a lot of effort go into making it possible? Oh yes, of course, we're all wrong and you're right. Sorry.

Actually, I think you are wrong in many respects. Your working conditions on site are overwhelmingly the most important factor unless you are a borderline case of being IR35 compliant or not. Most contractors' working conditions are unequivocally one or another with or without evidence of opting in/out forms signed.

Another thing is this: if you opt out you still need to consider why you use 'employment businesses' in the first place. The very term 'employment business' (as the name suggests) implies that you are not likely to be considered a business in your own right because you normally have to sign up to a recruiter's terms and conditions without you giving them any in return they must adhere to, they often operate blanket policies of how they deal with contractors and very often most will not or are increasingly disallowing contractors to choose their payment terms (if limited - over dividends) or even choose a brollie of their own choosing. This is wrong of them, of course, but true nevertheless.

If you want to be overwhelmingly considered a business in your own right, the IR make it clear that having your own limited company is not enough to demonstrate such status and nor does opting out or having IR35 friendly contract wording. You have to do your own marketing, tender for roles yourself, not be forwarded by a third party via introductions to an end client, have the option of pricing up whole jobs up not just rely on daily fees as a matter of course, provide all your own equipment, work your own hours in a location of your own choosing when it is convenient to get the job done, put right any mistakes on your own time and at your own cost if things go wrong and be able to substitute your own staff that you pay yourself if you're not able to do some of the work yourself due during the contract period due to other work commitments. Hardly any contractor roles fits all of this criteria as set out by the IR. Therefore, why make things more difficult for yourself and expose yourself to unnecessary risks (not being paid) and barriers to trade (not being allowed to go direct at the end of contract) by opting out? It makes no sense.

Also, I would strongly argue that opting out contract terms and conditions (which are supposed to differ from opting in terms) do not really satisfy the 'own business' criteria as I've listed above. They still normally specify the contractor's own name as the provider of services, not a business name you've given them and most still have termination clauses to accompany a notice period that's also expected and stated on a Works Schedule and they nearly always contain copyright or property ownership relinquishing clauses on your ideas and contributions and so on - none of which apply if you're a 'proper business' as defined by Gordo. Therefore, if opt out contract terms contain little more than psuedo employee clauses that are carefully drafted by lawyers (or Lawspeed who aren't qualified lawyers) to protect the recruitment business by exposing you to greater risks of not being paid or going direct at the end of the contract (if you're able to) then you may as well opt in and be done with it.

[malvolio]

Well gosh, after 12 years freelancing and 5 years studying and fighting IR35, I never realised I was so out of touch with reality. Thank you for the clarification...

And for the last time, Opting out has nothing to do with IR35. I never said it did. It does have something to do with contractual IBOYA pointers, but that point is obviously escaping everyone.

And since we now know that the agencies have no idea what the agency regs say and how they are supposed to adapt their contracts to suit, and we also know that the contract you sign has damn all relationship to the one they sign with the end client, the whole contractual conditions thing is a f***ing nonsense anyway. So I'll do it my way and you do it yours.

[expat]

"or supply"

?

Do you really think that opt out "before introduction or supply" means either will do?

[expat]

If you want to be overwhelmingly considered a business in your own right, ..... You have to do your own marketing, tender for roles yourself, not be forwarded by a third party via introductions to an end client, have the option of pricing up whole jobs up not just rely on daily fees as a matter of course, provide all your own equipment, work your own hours in a location of your own choosing when it is convenient to get the job done, put right any mistakes on your own time and at your own cost if things go wrong and be able to substitute your own staff that you pay yourself if you're not able to do some of the work yourself due during the contract period due to other work commitments.

Hmm. I suppose that pretty well rules out the acting, sporting, musical, and modelling professions, none of whose practitioners can be real businesses; because they use agents, have to work onsite, and can't substitute. Is it really true that Beckham is not a business?

[ASB]

Is it really true that Beckham is not a business?

[pedant]
Actually in a number of respects he isn't. In terms of his playing he was a salaried employee of Man U (and presumably is of Real). His business was all the other stuff related to image rights.
[/pedant]

[Denny]

Hmm. I suppose that pretty well rules out the acting, sporting, musical, and modelling professions, none of whose practitioners can be real businesses; because they use agents, have to work onsite, and can't substitute. Is it really true that Beckham is not a business?

Very true, as it happens. That's why the IR35 issue for office based contractors is such a farce.

On the issue of agents though: these professional hire their own agents who scout for work on their behalf. We use employment businesses hired by the end-client to source candidates. That's why we shouldn't really countenance terms used by recruiters and contractors alike such as our agency' 'they find us a job.'

We should really be questioning whether employment businesses actually supply our services too because we are businesses in our own right if we have limited companies or are not employed directly by the 'employment businesses' (unlike temp agencies who do supply employee temps). To take it to its logical conclusion I believe that 'employment businesses' (who don't employ anyone when sourcing contractors) should view our interest in roles as us doing them a favour (when we're deemed a good candidate worth introducing to the client) not vica versa by making ourselves available to them when responding to ads etc. They should also pay our travel expenses to interviews too (to reimburse from the client) considering that they can put up other candidates in competition when sourcing candidates which we have no say in. Our availability really represents an opportunity for the recruiter to make money not to help us find work. Even if that's what we actually want, that's not the contractual relationship that exists, unlike for those who use real agents like those you mention above who really are found a 'job' so to speak.

The whole ethos of using recruitment businesses should change to represent the true relationship between client/recruitment body/candidate.

[DodgyAgent]

Denny,

Why dont you outline a model of how you think a recruitment business "should" work