Formal Requesting of Permission for Absences and IR35

**rd409** · 18 May 2011, 12:23

Originally posted by AussieDigger View Post

Have had a strange request from the agency (apparently from the client) which goes along the lines of:

"
For Operational and Health and Safety reasons, ClientCo has a requirement to agree and log requests for non working days and to log location when an individual is not at their principle ClientCo location.
To enable this, a calendar has been made available on the <nnnnn> site.
To log a request for a non working day, you should launch the calendar and utilise the drop down option of "Non Working Day".
To log a request for working in a non principle location, you should:-
When working in another ClientCo or a 3rd Party site, select the option "Working From Other Site"
When working from any other site, select the option "Working from Home".
All contractors on ClientCo sites are to utilise the preferred suppliers for Travel. These are ‘ABCCo’ for rail travel and ‘XYZCo’ for Hotels.
"

Does anyone think this is conflict with a contractor's rights as an independent supplier and would agreeing to this not conflict with IR35 and create the impression that it was a condition of employment ?

And as for the 'health and safety' reasons, isn't your LtdCo the one responsible for your health and safety when offsite and onsite ? Isn't that why you have insurance ?

Welcome any thoughts or experience anyone else has had here.....

The first bits seems like an offshoot of time sheet with additional details. Nothing wrong with it. For the second bit, I would be very careful, as it is the client who is dictating what services to use to deliver the project. Clear IR35 caught. Instead, you can negotiate, that you would use whatever services you want, but only be reimbursed the cost of equivalent service from the chosen service provider.
I did that once, when the client was not ready to pay for a 1st class ticket to site, and I paid the upgrade from ltd company account. So client pays for standard cost, and my ltd company pays for the upgrade.

**northernladuk** · 18 May 2011, 12:24

I would say this is a non-issue as IR35 goes. H&S applies to anyone on site regardless of who they work for. It looks a little draconian if anything, knowing where everyone is at one time but you don't mention what the company does. If you are in defense or dangerous materials it seems reasonable.

An example of the above is at a certain defense related site in the NW you have to reverse in to parking spaces so all cars can drive out in an emergency. This is a H&S and not a permie type dictate so another non IR35 issue.

You could also argue it is still acceptable to IR35 to have conditions of employment as again these are not always the same as client direction.

With regard to using client agreements to get the best prices. I am not sure this is 'clear IR35'. There is a differentiation with the fact they mention contractors doing this. Wouldn't it depend on how the permies do. If the permies don't have to deal with the travel companies at all and contractors do it directly with them then I would say contractors are safely following a different process. The fact they want you to leverage discount and savings I don't think is IR35??

**eek** · 18 May 2011, 12:27

Originally posted by northernladuk View Post

An example of the above is at a certain defense related site in the NW you have to reverse in to parking spaces so all cars can drive out in an emergency. This is a H&S and not a permie type dictate so another non IR35 issue.

I visited a certain large naval base in Cornwall a while back. It was scary how many people couldn't follow that basic instruction (all of them).

**DaveB** · 18 May 2011, 12:34

Originally posted by northernladuk View Post

I would say this is a non-issue as IR35 goes. H&S applies to anyone on site regardless of who they work for. It looks a little draconian if anything, knowing where everyone is at one time but you don't mention what the company does. If you are in defense or dangerous materials it seems reasonable.

An example of the above is at a certain defense related site in the NW you have to reverse in to parking spaces so all cars can drive out in an emergency. This is a H&S and not a permie type dictate so another non IR35 issue.

You could also argue it is still acceptable to IR35 to have conditions of employment as again these are not always the same as client direction.

Originally posted by eek View Post

I visited a certain large naval base in Cornwall a while back. It was scary how many people couldn't follow that basic instruction (all of them).

Last permie place I was at was the same. Had to reverse park. Reason given was that people reversing out of parking spaces at home time were a hazard to other people walking through the car park.

I've worked at a place that required you to call in on arrival when working off site. If you didnt call within an hour of your expected arrival time they woudl try and call you and then escalte things if they couldnt get hold of you. You also had to call when leaving site.

The last one was dealing with old mining sites so there was the potential to be somewhere hazardous when working remotely.

**AussieDigger** · 18 May 2011, 12:41

Interesting comments...so shouldn't these sorts of restrictions be part of the contract ?

**northernladuk** · 18 May 2011, 12:50

Originally posted by AussieDigger View Post

Interesting comments...so shouldn't these sorts of restrictions be part of the contract ?

Some are, some aren't. We are not contracted to park in a certain way but health and safety dictates when you are on site you do this. It applies to everyone from the plant cleaner to the MD. Its different to a contract of work.

I would say most clients different and you have to consider the reasons for IR35 and then understanding them. You can't blame a large company for wanting to manage their contractors with certain policies. They don't want 100+ people following their own procedures and doing what they want. It would be mayhem and a hot bed for fraud and taking the piss. As long as what they ask you to do is aimed at contractors and doesn't make you look like a hidden permie you are on the right road. If they start asking you to do something that makes you look like a permie twin then you need to start thinking. Saying that even that is not a hard fast rule. It is a bit of a grey area to say the least.

Always worth asking though.

**eek** · 18 May 2011, 13:23

Originally posted by AussieDigger View Post

Interesting comments...so shouldn't these sorts of restrictions be part of the contract ?

Surely not if the same rules are applied to all visitors to the site.

**DaveB** · 18 May 2011, 13:25

Originally posted by AussieDigger View Post

Interesting comments...so shouldn't these sorts of restrictions be part of the contract ?

H&S is normally a special case in that it applies to everyone on site regardless of status. Cleaning staff, temps, visitors, contractors etc. Everyone is expected to follow the rules whether they are a permie or not.

It would be an issue if there was one rule for permies and one for third parties and they asked you to follow the permie rules.

**Wanderer** · 18 May 2011, 21:59

Originally posted by AussieDigger View Post

And as for the 'health and safety' reasons, isn't your LtdCo the one responsible for your health and safety when offsite and onsite ? Isn't that why you have insurance ?

No, the employer has a legal obligation to take reasonably practical measures to protect you while on site, read the Health and Safety at Work Act, section 3(1). We may think that the employers measures go beyond the requirements of what is reasonably practical but that is not a matter for us to debate.

I don't see that it would affect your IR35 status as it applies equally to employees and contractors.

Formal Requesting of Permission for Absences and IR35