Finding a substitute

[Brian Potter]

Has anyone on this forum been investigated with regards to IR35?

[northernladuk]

Has anyone on this forum been investigated with regards to IR35?

Yep, at least one but I don't think it got very far.

[jamesbrown]

Well most good guides on IR35 name RoS as one of the main three flags. I certainly would not want to go in to an investigation knowing I was only 66% covered and even that is then subject to enhanced scrutiny due to one of them being dismissed from the outset.

I certainly don't agree it's one of three at all. QDOS fail a contract on any of these, not on the basis one works and the rest is missing for a start.

This idea of 66% and point scoring more generally has been specifically rejected by the courts. It's the overall picture that matters and the absence of one clause places more focus on the strength of the other evidence. IIRC, the precedence was set by Ready Mix Concrete where all three conditions were required to indicate a contract of service. See also, McManus vs Griffiths 1997, where personal service was required. The difficulty (for us) is that the weighting of the factors varies along with the case law and there are no guarantees of anything until a case is heard. Whether QDOS decide to do one thing or another is probably more a reflection of their level of risk tolerance or the depth of review (e.g. of the contract terms alone vs. working practices) than anything else.

[northernladuk]

This idea of 66% and point scoring more generally has been specifically rejected by the courts. It's the overall picture that matters and the absence of one clause places more focus on the strength of the other evidence.

None of which is concrete and can and will be argued. I would not be looking forward to an hearing with a sham clause with only the strength of other evidence backing me up.

[tractor]

The agent says client won't go for it. How isn't it a sham then?



That's even worse. A good assumption here would be the client won't go for it either. Bearing in mind working practices trump the contract I don't know why you are bothered with what's in the contract. You know the score.

HMRC to agent : Will the client allow RoS
Agent to HMRC : No, I told the contractor this gave my opinion even though I hadn't read the contract before I signed it before he started.
HMRC to agent : Thank you very much!!

QDOS to contractor : Thanks but no thanks, goodbye.

Anyway, it's up to you.

Because the agent hasn't even read the contract so even though it may be, it is not yet.

Makes a change for us to say 'are you sure you are cut out to be an agent

[jamesbrown]

None of which is concrete and can and will be argued. I would not be looking forward to an hearing with a sham clause with only the strength of other evidence backing me up.

Not sure what you're getting at w/r to "none of which is concrete". An unfettered RoS will be scrutinized along with all other clauses (and not with predetermined weight) and this is why it's of paramount importance to collect the evidence during a contract to demonstrate status in the round. I wouldn't be looking forward to a hearing under any circumstances, but ticked boxes does not a strong case produce.

[northernladuk]

Because the agent hasn't even read the contract so even though it may be, it is not yet.

Makes a change for us to say 'are you sure you are cut out to be an agent

Why are people still banging on about the contract? He made it clear the client wouldn't accept it as part of working practice. I have said a number of times this will trump the contract.

[tractor]

...

Why are people still banging on about the contract? He made it clear the client wouldn't accept it as part of working practice. I have said a number of times this will trump the contract.

That might hold true if you substituted the client for the agent in your hypothetical conversation and that indeed, was the client's position.

[MyUserName]

Why are people still banging on about the contract? He made it clear the client wouldn't accept it as part of working practice. I have said a number of times this will trump the contract.

Couldn't it be argued here that this was nothing more than the agent's opinion. The client has not formally declared that no subs will be allowed.

[SpontaneousOrder]

While I agree with NLUK in that if the agent thinks they wouldn't go for it then they very likely wouldn't, the fact that he wasn't even aware that the clause was in there would, in my opinion, mean that any judgement would have to disregard the agent's remarks as not particularly credible.