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[ThomserveBAS]

Some of you may remember that I joined these forums when trying to decide how best to move from permie to contracting whilst still working for the company I would have liked to contract for. Now I fully understand why 6 months ago this would have been a bad idea but there is a possibility that some work will come my way in the next month for said company and I wondered if my position had now changed since then.

My guess is the answer is "yes" as I've separated myself from the company as an employee and will be returning to them to fulfill a specific piece of work, on a contract basis, for which I have pretty niche skills which they have found (and to be fair I told them) they can't get elsewhere.

Would you folks concur? Any pitfalls/gotchas I haven't thought of?

[LisaContractorUmbrella]

First consideration would be whether or not you would be returning as a contractor to do the same job you had when you were a permie

[ThomserveBAS]

First consideration would be whether or not you would be returning as a contractor to do the same job you had when you were a permie

Mmm yes, good point. One of the deliverables would be sorting out the mess they've created on a system I used to manage, but the project I was assigned to as a permie has been closed down and I would be working on a general business transformation programme of which that system would form a part of.

Does time between me working there as a permie and going back as a contract have any bearing on the whole decision?

[northernladuk]

I wouldn't, not for a good length of time and I don't mean 6 months. I know a couple of clients I worked for had specific terms in their permie contracts that didn't allow them to work with the client through any other avenue for 6 months to stop people leaving, contracting and coming back. All that happens is people are waiting the 6 months and then coming back. Half the contractors I am with now are ex employees of the client. They all still talk about us and we as the company and haven't let go of their permie heads at all. Easy meat for an investigation.

The fact that they have fulfilled the absolute minimum before going back I would say they are all heavily inside IR35 as a Friday/Monday contractor and you would be in the same position.

If you have a handcuff clause saying you can't work for suppliers/customers etc etc for 6 months. You have done that and are now coming back under a supplier i.e. your LTD then you have only satisfied the absolute minimum criteria and are therefore caught.

That is my view on it.......

[bobspud]

You really need to get this straight in your own head.

You can Friday to Monday quite happily and even an ex head of it at HMRC did it, but your contract and the working practices would have to be so straight and above board I would doubt anyone would be able to do it legally. It's not just you that is part of the problem. it's client as well and if there is one hint of them treating you or thinking about you as their employee it will hurt you and cause them no trouble at all...

[LisaContractorUmbrella]

Agree with NLUK - can't see that a few months away would make any difference really. Would they be dictating to you what was required on a regular basis or would this be a fixed term, fixed price project?

[ThomserveBAS]

They are used to dealing with contractors so this could be contracted out in such a way that it is fixed term/fixed cost for me to offer almost a consultancy for them to take ownership of the system and manage it in-house rather than me specifically manage it.

@NLUK - my contract of employment with the company as a permie would not allow me to return within 12 months as a permie - but nothing to be said for returning as a contractor. Also same response to bobspud below - it comes down to the question of should I vs. can I.

@bobspud - received loud and clear, I know there is always a difference between "is it safe to do x" as opposed to "can I get away with x".

Just something to think of as extension date looms...

[northernladuk]

@NLUK - my contract of employment with the company as a permie would not allow me to return within 12 months as a permie - but nothing to be said for returning as a contractor. Also same response to bobspud below - it comes down to the question of should I vs. can I.

This doesn't sound right. I would check again. Most handcuffs will also include via suppliers or working for customers of the client. If that is all your handcuff says it is pretty poor. I would also be very surprised if it stipulated permie.

Ok...

Should you? - No. You are a contractor now and shouldn't be seeking the haven of ex employers. No. You are in my opinion perfectly inside IR35 returning to a past client so soon.

Can you? - As a contractor inside IR35 then sure, fill your boots. As an outside IR35 contractor then no. Also check your handcuff clause again.

[muser]

Should you? - No. You are a contractor now and shouldn't be seeking the haven of ex employers. No. You are in my opinion perfectly inside IR35 returning to a past client so soon.

The statement above is not true.
OP - You need to speak to a specialist like Bauer & Cottrell. I recommend them because I have used their services several times last year.

My argument against NLUK's statement is this - You could return to an ex-employer as a contractor after 5+ years but if your contract and (equally important), your working practices fail the 3 tests of disguised employment, you will fall foul of IR35. As you may know, those tests are "Direct and Control","Mutuality of obligation" and "Right of Substitution". Google more if you need to.

Apart from the obvious, there are 2 main risks to bear in mind for someone in your position. The risk of being investigated and (if you're picked) the risk of failing an investigation. Regardless of your exposure to the former, the critical specialist counsel that you need is to ensure that your expsoure to the latter is minimised or if possible, eliminated.

[northernladuk]

The statement above is not true.
OP - You need to speak to a specialist like Bauer & Cottrell. I recommend them because I have used their services several times last year.

My argument against NLUK's statement is this - You could return to an ex-employer as a contractor after 5+ years but if your contract and (equally important), your working practices fail the 3 tests of disguised employment, you will fall foul of IR35. As you may know, those tests are "Direct and Control","Mutuality of obligation" and "Right of Substitution". Google more if you need to.

Apart from the obvious, there are 2 main risks to bear in mind for someone in your position. The risk of being investigated and (if you're picked) the risk of failing an investigation. Regardless of your exposure to the former, the critical specialist counsel that you need is to ensure that your expsoure to the latter is minimised or if possible, eliminated.

Yes but after 5 years there is a reasonable break. The rule I believe he will fall straight in to here is a Friday to Monday contractor which is the whole reason for IR35. He will be returning to the same management, same project using the knowledge he had as a permie directly, not generic skills. If his contract says he cannot work for the company for 12 months and the comes back straight after that he has only demonstrated the absolute minimum he can to be away. That duration can be directly applied to Friday to Monday. That has Sat/Sun inbetween which can't be worked so it is the first working day back they can offer. That is exactly the same situation if you come back the first Monday after a x month break as directed by his contract. It is the first possible day he can come back therefore will be judged the same.

The 5 year example is not really valid in this case it he hasn't had a 5 year break. In that example I would agree.