Contracting to previous employer and IR35

**northernladuk** · 3 February 2012, 18:34

Originally posted by myso View Post

I am about to leave permy land. My current employer has asked if I would be willing to contract back to them for 1 day a week, plus a retainer & fixed for bits of support work during the week.

Is this type of situation automatically caught? I know Friday to Monday was precisely what IR35 is designed to catch, but would this type of arrangement be sufficiently different?

Contract and real working conditions themselves would be IR35 friendly.

If you don't know if you are caught how do you know the working conditions etc are IR35 friendly? If you know they are friendly why do you think you are caught??

Going back doesn't mean you are automatically caught but you have to be very careful and work very hard not to slip back in to old ways. Quite often it is your now client that is the inflexible party dealing with you as they did before using the same terminology.

If, as you say, you can look like a business providing a service back to the client and being treated as a service providor and not an employee then yes it is possible to do outside IR35.

Get your contract reviewed the likes of QDOS to be sure and read up on the differences and what you have to avoid. No more terms like wage, employer, boss etc

**myso** · 3 February 2012, 18:47

Originally posted by northernladuk View Post

If you don't know if you are caught how do you know the working conditions etc are IR35 friendly? If you know they are friendly why do you think you are caught??

Well I know basically in the hypothetical that I can dictate them, that's all. Still all up in the air.

Take your point regarding slipping into old ways or certain individuals having certain perceptions.

I suppose at brass tacks, I'm wondering if the assumption would be balanced much more towards my being a disguised employee, just because the company used to employ me.

**northernladuk** · 3 February 2012, 19:32

Originally posted by myso View Post

Well I know basically in the hypothetical that I can dictate them, that's all. Still all up in the air.

Take your point regarding slipping into old ways or certain individuals having certain perceptions.

I suppose at brass tacks, I'm wondering if the assumption would be balanced much more towards my being a disguised employee, just because the company used to employ me.

Yes and that is why it would normally be a red rag to a bull. Employee Friday, contractor Monday but in reality absolutley nothing else had changed. In this case you are performing a specialist duty because the client has no one else to do it and you are charging them to do that task, not your old job so the actual job itself is very different which works in your favour.

Little things you need to look out for are a different email address or set up, possible with (contractor) or your LTD name in it. If you start answering emails on the same system dealing with old issues it doesn't look good. See if you can get a new pass, possible with the word contractor on. Don't deal with HR anymore, deal with purchasing. Don't use any profiles you had set up on the system such as training or HR reviews. Don't use their expense system, invoice them for expenses.. and so on and so on.

The better the cut off and restart the better. There are many many flags and none of them would be a problem as single item but together they start causing a problem. Avoid as many as you can.

**TheFaQQer** · 3 February 2012, 20:01

The thing that I think will cause you potential problems in the event of an investigation is what the client might say to HMRC which implies that you're an employee.

How close is the new opportunity to the work that you already do? If it's similar, then I don't think I'd risk it myself, without ensuring you have good insurance in place.

**malvolio** · 3 February 2012, 20:12

Simple answer - deliverables, deliverables, deliverables.

Make sure you have a clear statement of what they want you to provide and that you are not expected to provide anyting not listed. That way, you can argue that you are not under their D&C.

And if they can give you a purchase order then fine, otherwise get a PCG draft contract (free to download from the main website) and complete the schedule to define the work; it will cover all the the necessary bases.

That should be anough to keep the IR35 bogieman at bay.

**mudskipper** · 3 February 2012, 20:28

I did similar. I worked from home, told them which days I was and wasn't working, and signed in when I did go into the office. I managed to convince myself I was outside IR35

Contracting to previous employer and IR35