RBS, contractors and IR35

[Barry Badrinath]

Chapeau to you

[JohntheBike]

Chapeau to you

thank you.

When a Labour shadow minister, my MP, supports the policies of a Conservative government, you know the game is up!

[northernladuk]

wasn't far wrong was I?

Bearing in mind exactly the same happened in the Public Sector, even down to the previous year deal it was hardly an out there prediction.

[JohntheBike]

Bearing in mind exactly the same happened in the Public Sector, even down to the previous year deal it was hardly an out there prediction.

I didn't claim it was. But there are the likes of other organisations that would like to convince you that they could have influenced the outcome. I never believed them, although I would have been happy to have been disproved.

[nick101]

What if they start hiring contractors through consultancies? Can anyone explain if this would change anything?

[northernladuk]

What if they start hiring contractors through consultancies? Can anyone explain if this would change anything?

No. That was the first idea everyone had when the public sector changes and it didn't work.

[webberg]

We will see agencies who previously supplied people try to convert to an entity supplying services.

We have seen suggestions from many such claiming that a simple change in words in a contract would permit this to happen.

That is dangerous ground.

As I've been banging on about (apologies), its the facts of the job and how it's done that matter, not what a contract says.

If the fact is that a software house supplying services to a client ALWAYS sends the same person/people to that client for that job and if they are unavailable, nobody turns up, I would say that looks like a personal service within IR35 potentially.

It's going to be very hard for a personal services agency to convince HMRC that they are now an entity supplying an end to end service based on milestones.

[JohntheBike]

We will see agencies who previously supplied people try to convert to an entity supplying services.

We have seen suggestions from many such claiming that a simple change in words in a contract would permit this to happen.

That is dangerous ground.

As I've been banging on about (apologies), its the facts of the job and how it's done that matter, not what a contract says.

If the fact is that a software house supplying services to a client ALWAYS sends the same person/people to that client for that job and if they are unavailable, nobody turns up, I would say that looks like a personal service within IR35 potentially.

It's going to be very hard for a personal services agency to convince HMRC that they are now an entity supplying an end to end service based on milestones.

The working practises will be taken into account in conjunction with the contract.

Where the working practises conflict with the contract, even then they may not over ride the contract.

[northernladuk]

The working practises will be taken into account in conjunction with the contract.

Where the working practises conflict with the contract, even then they may not over ride the contract.

Is that right? In what situation could that happen? It's long been said that working practices trump contract and I believe this has been seen in case law as well. I've not, that I can think of, seen any case of the contract overriding working practice? Not in a useful way anyway.

[JohntheBike]

Is that right? In what situation could that happen? It's long been said that working practices trump contract and I believe this has been seen in case law as well. I've not, that I can think of, seen any case of the contract overriding working practice? Not in a useful way anyway.

at the risk of howls of protest from you, this happened in my EAT. Yes, perhaps things have moved on. However, my contract with the agency gave me the ROS. However, the client insisted in court that they would not have allowed a substitute. This is where in another post here I questioned if the upper contract could be different from the lower contract and which would be used in a status determination.

This was part of my argument that I was an employee. However, in his summing up, Mr. Justice Elias specifically said that as I had the contractual right of substitution, this was incompatible with a contract of service, i.e. employment. He also said that if I had tried to substitute and the client refused, then they would have been in breach of contract.

I can only relate to my own experiences.