Staying in the same public sector contract after April 2017

[LondonManc]

They've got to take their head out the sand long enough to realise they need to get cover.

It will benefit us all - cases fought and won (by the contractor), which is much more likely to happen if the contractor has professional representation, undermine the whole premise, and make rollout to the private sector more difficult to justify.

And the one idiot they pick (and there are many 100's) manages to lose?

I certainly don't want the entire future of contracting sitting on the shoulders of some disguised permie that hasn't a clue.

Win/win outcome then; either the HMRC gods get their sacrifice or if permietractor numpty wins, we're all home free.

[northernladuk]

A moment ago the person was sharp enough to sort out professional cover; now they are an idiot who is going to lose - make your mind up

Erm, just buying professional cover so soon to it all kicking off is hardly sharp.

As I said earlier, though, the entire future of contracting doesn't hinge on one case. HMRC cannot bunch everyone together and say "you are all caught because this one person that we beat is caught" - if they did that then they would have already forced everyone inside on the basis of any case that they have won. They need to try every case on the individual merits, or they need to scare people into paying money not due, or they need to change the law. At the moment they have not changed the law significantly (the tests remain the same as they always have done) but they are scaring people already.

The idea that HMRC can or will find one case and change everything is ridiculous.

It doesn't. Just makes everything a lot more complicated and difficult. A situation best avoided if possible.

[RonBW]

It doesn't. Just makes everything a lot more complicated and difficult. A situation best avoided if possible.

I'm not sure what you are saying here. That HMRC needing to win every case is more complicated and difficult and should be avoided?

[rob s]

Precedents are pretty powerful.

[5000]

WE may be missing a trick here. consider...

The client says you are IR35 fodder, and (their agency) taxes you accordingly. You however are sure you are not, from your knowledge of the rules and in defiance of the client's view and the tools assessment (which is almost certainly wrong in law anyway). So you take the client to the EAT and claim employment rights, since the client is saying you are under their full direction and control and providing a personal service, ergo you have all the hallmarks of an employee so why not any of the rights. The client don't want you to win that one, so they are now forced to prove that you are outside IR35.

Would that work...?

As for IPSE cover, that applies unconditionally to all members and all contracts. They will not cover you for a pre-existing investigation, obviously (although they did once take on such a case in the early days to prove a point of law...) and their insurers will not defend a case which is guaranteed inside IR35 (although that hasn't happened yet to my knowledge). So IPSE membership or some equal level of PEI would appear to be even more of a no brainer than it is now.

From the technical note:

As things stand the employment tribunal is an interesting angle. I would guess you would have as about much success as BOS brolly contractors under SDC would have at the moment. The technical note (para 37 and 51) indicates that the intent is that "PSC"'s don't get "certain" employment rights. Will be interesting what the final legislation looks like and how the first case goes

[SueEllen]

From the technical note:

As things stand the employment tribunal is an interesting angle. I would guess you would have as about much success as BOS brolly contractors under SDC would have at the moment. The technical note (para 37 and 51) indicates that the intent is that "PSC"'s don't get "certain" employment rights. Will be interesting what the final legislation looks like and how the first case goes

Some departments are banning "PSC"s.

[malvolio]

Some departments are banning "PSC"s.

Yeah, and that could be attacked as restraint of trade...

[SueEllen]

Yeah, and that could be attacked as restraint of trade...

I think going after employment rights and shaming government departments, particularly large ones, in the media is the way to go.

[eek]

WE may be missing a trick here. consider...

The client says you are IR35 fodder, and (their agency) taxes you accordingly. You however are sure you are not, from your knowledge of the rules and in defiance of the client's view and the tools assessment (which is almost certainly wrong in law anyway). So you take the client to the EAT and claim employment rights, since the client is saying you are under their full direction and control and providing a personal service, ergo you have all the hallmarks of an employee so why not any of the rights. The client don't want you to win that one, so they are now forced to prove that you are outside IR35.

Would that work...?

Yep we covered that back in november. To be honest it's not something worth looking at now because it didn't concern hmg when discussed in the consultation and we can't do anything about it until April when people know in which camp they fall into.

But come April if you've been deemed inside I think a trip to the employment tribunal would be far more productive than arguing if you are inside or outside ir35.

[bobspud]

I think going after employment rights and shaming government departments, particularly large ones, in the media is the way to go.

Indeed. It won't take long for reverse panic to set in if the other government departments witness 300 contractors aggressively using a blanket IR35 declarations against the fee payer