Length Of Contract - IR35 Implications

[kaiser78]

I will soon have been at current clientco for 3 years in a PM role and have been posting on another thread, but has led to the following query and would welcome views;

I am working on multiple projects at different stages of development and it is not always possible to have a new work schedule each time I take on a new project, as these projects tend to overlap.

What are the IR335 implications of being at clientco for this long, on the basis that I market myself as PM consultant/specialist doing a role that a permie would arguably not be able to undertake ? Does length of service feed into the IR35 argument ?

[northernladuk]

Length of time at a client by itself is no direct pointer to IR35 at all. It does, however, look bad and may attract further scrutiny but if you have everything documents and your working practices are outside then you have nothing to worry about. People do tend to take their eye off the ball after a long period. I know the guys at my client site who have been there a few years have almost stopped bothering with IR35 and are as part of the client organisation as the permies are. In the JLJ case it went pear shaped as the guy had been there so long he stopped bothering with the detail in his contracts so ended up just looking like a permie.

With you flitting from project to project as the customer sees fit over that length of time though I would say on face value it looks very much like you are being treated as part of the permanent workforce. You will have to be super vigilant to make sure that every piece of work you do is documented in a schedule of work and make absolutely sure you stick to it. If HMRC start looking in to this they would go for client control and the fact you are, in the clients eye, part of the work force to call upon when they see fit.

You do mentioned no schedule for some of the work. I am struggling to see how you are not under direct control of the client then. He just moves you as he wants to. Can't see how D&C can be much clearer than that tbh.

EDIT just to add the length of time there doing the same role of 'troubleshooter' could also look like the actual role is enduring and not project based which is even worse.

[SueEllen]

A new work schedule could simply be an email agreement between you and ClientCo - I don't see how ClientCo writing you an email with a brief outline of what you need to do on the project is to hard for them to do.

In regards to IR35 length of service doesn't come into it and as a permie I was moved around from project to project as needed. One employer due to their large size gave a written role description for each role while the smaller employer didn't though it was verbally discussed.

[northernladuk]

A new work schedule could simply be an email agreement between you and ClientCo - I don't see how ClientCo writing you an email with a brief outline of what you need to do on the project is to hard for them to do.

D&C can also be proven by a simple email giving him a new piece of work. This is the lack of diligence I believe will land a long term contractor in the tulip.

In regards to IR35 length of service doesn't come into it and as a permie I was moved around from project to project as needed. One employer due to their large size gave a written role description for each role while the smaller employer didn't though it was verbally discussed.

So are you saying him moving around is OK or it is not OK?

[jamesbrown]

In the absence of having actually subbed in the past, lack of D&C can be very important from an IR35 perspective, not only due to its importance in a status enquiry, but the ease of documenting this during a contract and, IMO, the relatively straightforward and consistent interpretation of lack of D&C ("what, where, when and how"). Of course, you may have positive pointers and negative pointers, but having a client shift you between projects as they see fit (as opposed to starting separate contracts or schedules of work) is a strong negative pointer on the "what" and "when", as it's more akin to what an employer would do with a perm or temp resource. Personally, I retain documentation of lack of D&C, as it's easy to do. Lack of D&C is also a strong indication that your working relationship with the client is truly b2b and that the client is, therefore, less likely to say something odd during an enquiry.

In terms of the length of contract, that has no bearing, beyond the increased chance of becoming "part and parcel" if you let that happen.

[northernladuk]

In the absence of having actually subbed in the past, lack of D&C can be very important from an IR35 perspective, not only due to its importance in a status enquiry, but the ease of documenting this during a contract and, IMO, the relatively straightforward and consistent interpretation of lack of D&C ("what, where, when and how"). Of course, you may have positive pointers and negative pointers, but having a client shift you between projects as they see fit (as opposed to starting separate contracts or schedules of work) is a strong negative pointer on the "what" and "when", as it's more akin to what an employer would do with a perm or temp resource. Personally, I retain documentation of lack of D&C, as it's easy to do. Lack of D&C is also a strong indication that your working relationship with the client is truly b2b and that the client is, therefore, less likely to say something odd during an enquiry.

Nice summary. I would emphasise the strong negative pointers as it is one of the key factors often mooted along with MoO etc.

In terms of the length of contract, that has no bearing, beyond the increased chance of becoming "part and parcel" if you let that happen.

Which I would say is a danger in this situation after 3 years of been dropped in to various projects from what has been explained so far.

[SueEllen]

D&C can also be proven by a simple email giving him a new piece of work. This is the lack of diligence I believe will land a long term contractor in the tulip.



So are you saying him moving around is OK or it is not OK?

Lots of firms use electronic documents and unsophistication firms will just use emails.

Work schedules are not that hard to write (unless you don't know your role ) and as contracts are negotiated you can write one or amend one as long as both you and the client agree it.

The vast majority of employees cannot do this to their role/job descriptions.

The way he's moved around is not OK as there is nothing that distinguishes him from the permanent staff in many companies.

[DirtyDog]

Does length of service feed into the IR35 argument ?

No

[northernladuk]

No

... but everything else you have said does