Muppet IR35 question - are they making me disguised employee or am I being rude?

[malvolio]

I agree Mal and anyone behaving like a businessman is likely to run far less risk of running foul of IR35 than someone who thinks like a temp - the problem comes when the role is that of a temporary worker. You can change contracts all you like and not go to the Xmas party etc but, at the end of the day, if there is a level of supervision, direction or control and you are only working that one single contract you would be likely to lose at an IR35 tribunal

Not if the thing being done is defined in the scehdule to the contract as a requiement of that contract. Then D&C is reduced to the client telling you how to do something, which is easily defeated. The JLJ case foundered on him moving from specific deliverables to general fixing of whatever was put in front of him, without there being a contract (in the full sense of the term) to deliver what in effect were support services.

[LisaContractorUmbrella]

"Not if the thing being done is defined in the scehdule to the contract as a requiement of that contract. Then D&C is reduced to the client telling you how to do something, which is easily defeated."

Sorry Mal might be being dumb here but can you give me an example of what you mean?

[northernladuk]

"Not if the thing being done is defined in the scehdule to the contract as a requiement of that contract. Then D&C is reduced to the client telling you how to do something, which is easily defeated."

Sorry Mal might be being dumb here but can you give me an example of what you mean?

I believe what Mal means his schedule became like a permie role spec rather than list of deliverables. Generalising his duties rather than nailing them down to show delivery of a particular set of skills. It ended up him looking like he was providing a role to the client rather than a piece of work.

[malvolio]

"Not if the thing being done is defined in the scehdule to the contract as a requiement of that contract. Then D&C is reduced to the client telling you how to do something, which is easily defeated."

Sorry Mal might be being dumb here but can you give me an example of what you mean?

I thought I did, withthe JLJ judgement... Anyway, the point is if the contract says you are to provide expertise sufficient to maintain the existing CRM database in a workable and efficient condition for a period of time, that is not Direction and Control, it is what you are contracted to provide. If, however, your contract says "Build me a new CRM" and you then work on routinely maintaining the database becuase you've been tasked to do so, then that is D&C. If the maintenance requriement gets added to your contract schedule - "Build me a new CRM and maintain the existing one pro tem" - then it isn't.

If course, you have to be reasonable. It would be difficult to define my average task in such precise terms, but I usually get general objectives and it's entirely up to me how they are delivered. That again is defensible against accusations od D&C.

Basically you get paid to do what the contract says you are paid to do. Doing anything else is risky in IR35 terms.

[LisaContractorUmbrella]

I believe what Mal means his schedule became like a permie role spec rather than list of deliverables. Generalising his duties rather than nailing them down to show delivery of a particular set of skills. It ended up him looking like he was providing a role to the client rather than a piece of work.

Ah ok - thanks NLUK

[LisaContractorUmbrella]

I thought I did, withthe JLJ judgement... Anyway, the point is if the contract says you are to provide expertise sufficient to maintain the existing CRM database in a workable and efficient condition for a period of time, that is not Direction and Control, it is what you are contracted to provide. If, however, your contract says "Build me a new CRM" and you then work on routinely maintaining the database becuase you've been tasked to do so, then that is D&C. If the maintenance requriement gets added to your contract schedule - "Build me a new CRM and maintain the existing one pro tem" - then it isn't.

If course, you have to be reasonable. It would be difficult to define my average task in such precise terms, but I usually get general objectives and it's entirely up to me how they are delivered. That again is defensible against accusations od D&C.

Basically you get paid to do what the contract says you are paid to do. Doing anything else is risky in IR35 terms.

OK I see what you are saying but the wording on the schedule is irrelevant if, in reality, you have built a new CRM and then go on to maintain the database. The point I was trying to make (badly obviously ) is that advising to change wording in a contract is not helpful from an IR35 point of view if the changes don't reflect reality

[malvolio]

OK I see what you are saying but the wording on the schedule is irrelevant if, in reality, you have built a new CRM and then go on to maintain the database. The point I was trying to make (badly obviously ) is that advising to change wording in a contract is not helpful from an IR35 point of view if the changes don't reflect reality

Well yes, post-Dragonfly that's a given.

[BlasterBates]

The problem as I see it is if the IR35 inspector interviews the client, if they do I would have thought it would be fairly easy for them to phrase the questions so that you get caught out. Lets face it the client doesn't care he'll just answer the questions. If you were to answer yourself you could probably describe it an a way that sounds plausible but a client will just see you as another employee and will probably answer accordingly. The key in my opinion is short contracts that in itself is a strong pointer to doing a specific piece of work. I think if you're there for a year or more I reckon you could be easily sunk.

[nomadd]

...advising to change wording in a contract is not helpful from an IR35 point of view if the changes don't reflect reality

And even when they do, it's not looked upon lightly, going by past lost IR35 cases. More often than not, the IR argues the changes were in fact for nothing more than an IR35 avoidance measure, and unfortunately judges have shown a habit of agreeing with that.

[nomadd]

The problem as I see it is if the IR35 inspector interviews the client, if they do I would have thought it would be fairly easy for them to phrase the questions so that you get caught out. Lets face it the client doesn't care he'll just answer the questions. If you were to answer yourself you could probably describe it an a way that sounds plausible but a client will just see you as another employee and will probably answer accordingly.

Agree with every word of that.

The key in my opinion is short contracts that in itself is a strong pointer to doing a specific piece of work. I think if you're there for a year or more I reckon you could be easily sunk.

Well, as we've discussed, shorter contracts can be helpful. But, any sizable project cannot be delivered in under a year, whether that be an I.T. project or any other form of engineering project. I've just finished a single piece of work on a single project with no element of direction or control that took two years. Can't be helped sometimes, particularly for those of us who've been around a long time in the business and are taken on to handle larger enterprise projects.