New contract, where is the notice period on MY side ?

[ASB]

Got to agree with you Malvolio. Even the revenues own status manuals make it pretty clear that no Moo = not employee (they don't have a lot of choice given the precednt set in court). Their own status manuals also suggest that a zero notice period or no ability to give notice is a good indicator.

I've generally had contracts where the client can get me to sling my hook instantly, and I can't give notice. Of itself this probably won't get out of IR35, but coupled with not being named in the contact and deliverable it a decent change for when the IR come knocking.

[Clog II The Avenger]

I disagree...

<<Got to agree with you Malvolio. Even the revenues own status manuals make it pretty clear that no Moo = not employee>>

I disagree: IR35 can’t be decided on one condition only. Computer People phoned me with some new contract details and they told me that all of their new contracts fall within IR35. Their terms and condition stat that there is no notice by the contractor but if he/she does give early notice there is £500 penalty. Needles to say I do not wish to do business with them.

[ASB]

I disagree: IR35 can’t be decided on one condition only.

By all means disagree with something I didn't say.

I didn't say it was determinitive (although if you read McKenna in Ready Mix you will find that no moo is determinitive, as is not being compelled to give personal service. Obviously key is getting them into the notional contract). The IR's status manuals are quite enlightening on the subject. You can find them on their website (eventually )

Their terms and condition stat that there is no notice by the contractor but if he/she does give early notice there is £500 penalty.

So there is an ability to give notice then.

Computer people cannot say their contracts fall within IR35 - Although they likely will if the say that. It is for you to decide if you are in or out, and the IR to challenge if they feel so inclined.

[ASB]

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[zathras]

<<Got to agree with you Malvolio. Even the revenues own status manuals make it pretty clear that no Moo = not employee>>

I disagree: IR35 can’t be decided on one condition only.

Wrong!

There are two things which must be present to create a contract of employment.

The first of these is the irreducible minimum mutality of obligation. This has to be more than a consideration in return for something since all contracts have this. What is under question is exactly what is the minimum mutality of obligation. I've feel that if your client is obligated to give you work and you are obligated to do it then this may be sufficient. - for example when the client has no work for me I've have said that I will not provide services until there is.

I refer you to PropertyCare v T Gower and others, Hanover Park Commercial, Hanover Park Services

The cases, starting with Ready Mixed Concrete (1968) 2QB 497, show that mutuality of obligations means more than a simple obligation on the employer to pay for work done; there must generally be an obligation on the employer to provide work and the employee to do the work.

Or even Carmichael v. National Power Plc.

no obligation on the C.E.G.B. to provide casual work, nor on Mrs. Leese and Mrs. Carmichael to undertake it, was imposed. There would therefore be an absence of that irreducible minimum of mutual obligation necessary to create a contract of service

The other is the requirement for personal service. If a person is not obligated to provide themselves and can get a substitute in then it cannot be employment. This is why a sub clause can be important and why HMRS try so hard to discredit anyone. It is also less grey than IMMOO.

I would refer you to the comments of McKenna J in Ready Mixed Concrete (South East) Ltd v Minister of Pension and National Insurance

A contract of service exists if these three conditions are fulfilled.
(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.
(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.
(iii) The other provisions of the contract are consistent with its being a contract of service.


"There must be a wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill. Freedom to do a job either by one's own hands or by another's is inconsistent with a contract of service

[ASB]

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[ASB]

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[malvolio]

There's a terrible echo in here you know...

We all know there are three key factors (MOO, Substitution and Financial Risk). No notice period gives you the first and the third. Substitution, even in a CP contract, is acheivable - you have to have a right to it without unreasonable restrictions, you don't have actually to do it for it to count. (That, however, is not a reason to take a CP contract. In fact, nothing is a reason to take a CP contract...)

So can we stop arguing detail and get back to slagginoff people again.

[zathras]

There's a terrible echo in here you know...

We all know there are three key factors (MOO, Substitution and Financial Risk). No notice period gives you the first and the third. Substitution, even in a CP contract, is acheivable - you have to have a right to it without unreasonable restrictions, you don't have actually to do it for it to count. (That, however, is not a reason to take a CP contract. In fact, nothing is a reason to take a CP contract...)

So can we stop arguing detail and get back to slagginoff people again.

No. Financial Risk is not determinative. The three things required are MOO, Personal Service and Control. Absence of any means that the contract is not caught. Control is defined as what, when where and how. Few contractors are told how to do the job. However control has been less important in recent status cases as jobs become more specialised. In fact thinking of it logically financial risk cannot be determinitive since any company would reduce risk as much as possible.

It is debatable that Immediate termination however reduces the mutual obligations sufficiently. In this instance Mutual Obligations would still exist while the contract was in force. In order for their to be insufficient mutual obligations this must be done during the life of the contract. A good example of this is when a major insurer had it's computer center flooded had they sent the contractors home with no pay until the computers dried up then this would demonstrate IMMOO. They would had to have paid the employees under common law.

[Mailman]

Perhaps we shouldn't expect new contractors to know anything about these, considering that if they do as is often suggested and go away to the CUK front page and read the First Timers guide and the Tax/Legal Q&A, they won't see any mention of them.

Lucky denny spent so much time posting info on stuff like this eh

Their terms and condition stat that there is no notice by the contractor but if he/she does give early notice there is £500 penalty.

Penalty clauses are unenforceable and if this ever went to court would be struck down in favour of the contractor. Its as simple as that.

Sounds like these agents are real cowboys who prey on new contractors who arent familiar with how things are done.

Mailman