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Liability insurance/sickness when inside

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    #21
    Originally posted by Unix View Post
    If the current trend continues and most big private sector clients deem contractors inside, does the contractor need to still purchase insurances? Seems like the fact you have the insurances is a material pointer that you are not a disguised permie? Also what about sickness and holiday pay, is the client is saying you are really a permie and taxed like one, then surely they are due the same benefits?
    Also what about sickness and holiday pay, is the client is saying you are really a permie and taxed like one, then surely they are due the same benefits?
    unfortunately so far, this hasn't been established in case law.

    Comment


      #22
      Originally posted by Unix View Post
      This will be challenged in the courts, it's clearly unfair, you can't be considered an employee in one sense but not the other.
      This will be challenged in the courts,
      hopefully. However, the establishment have means to nobble cases. Given the total lack of any information, I would suggest that the case that IPSE were supporting and the Alcock case, where judgements should have already been given, have both been nobbled.

      Comment


        #23
        Originally posted by cojak View Post
        It is indeed being challenged in courts.

        Fighting HMRC and IR35

        If you're that concerned and confident, throw some money in - the chap is doing the difficult job for you.
        It is indeed being challenged in courts.
        surely he is challenging the FTT judgement that one contract was subject to IR35. This is quite different to taking his case to the ET to establish if he is entitled to employee benefits.

        Comment


          #24
          Originally posted by JohntheBike View Post
          .

          there is no case law to support that opinion.
          That's because the poster stated a fact and not an opinion.

          There is no legal link between status for tax purposes and for employment law purposes.

          Be clear that saying that you are "an employee for tax purposes" is incorrect. If the work you do, if reduced to a contract, would give you employee status, you pay tax "as though" you were an employee, but the tax law is very clear that this is a "deemed" situation, not a legal or real one.

          It's a fiction for tax purposes.

          As such that fiction has no weight and no influence on employment Tribunals and has never been considered by them as being relevant.

          This is unfortunately well rehearsed ground and I have expressed this analysis before and therefore for the sake of all concerned, will not do so again on this thread.

          We all know that JtB's answer to every question however is "go to the ET" and whilst this has been reported ad nauseum, expect more on this thread.
          Best Forum Adviser & Forum Personality of the Year 2018.

          (No, me neither).

          Comment


            #25
            Originally posted by webberg View Post
            That's because the poster stated a fact and not an opinion.

            There is no legal link between status for tax purposes and for employment law purposes.

            Be clear that saying that you are "an employee for tax purposes" is incorrect. If the work you do, if reduced to a contract, would give you employee status, you pay tax "as though" you were an employee, but the tax law is very clear that this is a "deemed" situation, not a legal or real one.

            It's a fiction for tax purposes.

            As such that fiction has no weight and no influence on employment Tribunals and has never been considered by them as being relevant.

            This is unfortunately well rehearsed ground and I have expressed this analysis before and therefore for the sake of all concerned, will not do so again on this thread.

            We all know that JtB's answer to every question however is "go to the ET" and whilst this has been reported ad nauseum, expect more on this thread.
            As such that fiction has no weight and no influence on employment Tribunals and has never been considered by them as being relevant.
            which is effectively what I'm saying, because no one has tested this scenario to date.

            and clearly Susan Winchester's claim was prevented from progressing this far so as not to establish any case law. As I've said, the establishment have ways and means of nobbling cases when the outcome could be disadvantageous to them. So much for IPSE's claim that this claim was important. If it were that important, it should not have been settled for what appears to have been a trifling amount in the great scheme of things.
            Last edited by JohntheBike; 15 October 2019, 09:21. Reason: added opinion

            Comment


              #26
              I'll make it clear that I also do not subscribe to the conspiracy theory above.

              I do not believe that some mysterious department of Government is continuously monitoring potentially thousands of tax and/or employment law cases, in order to "nobble" those in which a Judge might find that there is a connection between tax and employment law legislation, rights or obligations.

              In my view Government policy is clear and a Judge, until recently at any rate, would be reluctant, perhaps unable, to find a decision that was contrary to what the law makers of the land intended and legislated for.

              Judges are required to interpret the law as intended and written by Parliament.

              Judges are (usually) reluctant to "make" law, especially where what they "make" is contrary to Government policy.
              Best Forum Adviser & Forum Personality of the Year 2018.

              (No, me neither).

              Comment


                #27
                Originally posted by JohntheBike View Post
                and clearly Susan Winchester's claim was prevented from progressing this far so as not to establish any case law.
                To be clear, the only thing that possibly could have been established in case law is that a mid-contract 'inside' determination can confer employment rights. That's the most that the case would have proved if it had gone all the way to judgment.

                If that had happened it wouldn't have prevented any 'inside' determinations from happening. It would only have encouraged private sector clients to jump ahead of the game and avoid any determinations, mid-contract or otherwise, so as to head off any ET claims, by banning LtdCo contractors entirely. Which is what is happening anyway, so the Winchester case would have set a precedent for something that is being avoided anyway.

                And that matters not at all to HMRC. The precedent wouldn't have bothered them in the least -- they don't care whether people who are determined to be inside by their clients get any employment rights. All they care about is getting people inside, and if they get it via 'inside' determinations or by blanket umbrella usage, it doesn't matter to them.

                The Winchester 'precedent', if it had happened, would have meant nothing to IR35. The most likely case is that they settled because they expected to lose and it was getting too costly to continue. Or maybe because their political masters told them it was a really bad look for them to fight it and to stop.

                Comment


                  #28
                  Originally posted by webberg View Post
                  I'll make it clear that I also do not subscribe to the conspiracy theory above.

                  I do not believe that some mysterious department of Government is continuously monitoring potentially thousands of tax and/or employment law cases, in order to "nobble" those in which a Judge might find that there is a connection between tax and employment law legislation, rights or obligations.

                  In my view Government policy is clear and a Judge, until recently at any rate, would be reluctant, perhaps unable, to find a decision that was contrary to what the law makers of the land intended and legislated for.

                  Judges are required to interpret the law as intended and written by Parliament.

                  Judges are (usually) reluctant to "make" law, especially where what they "make" is contrary to Government policy.
                  I do not believe that some mysterious department of Government is continuously monitoring potentially thousands of tax and/or employment law cases, in order to "nobble" those in which a Judge might find that there is a connection between tax and employment law legislation, rights or obligations.
                  If you'd care to provide your private Email address by private notification, I'll provide you with evidence to counter your opinion. I can't publish openly here.

                  I think you grossly underestimate the power of the Old Boy's network and those who are members of secret societies.

                  Comment


                    #29
                    Originally posted by WordIsBond View Post
                    To be clear, the only thing that possibly could have been established in case law is that a mid-contract 'inside' determination can confer employment rights. That's the most that the case would have proved if it had gone all the way to judgment.

                    If that had happened it wouldn't have prevented any 'inside' determinations from happening. It would only have encouraged private sector clients to jump ahead of the game and avoid any determinations, mid-contract or otherwise, so as to head off any ET claims, by banning LtdCo contractors entirely. Which is what is happening anyway, so the Winchester case would have set a precedent for something that is being avoided anyway.

                    And that matters not at all to HMRC. The precedent wouldn't have bothered them in the least -- they don't care whether people who are determined to be inside by their clients get any employment rights. All they care about is getting people inside, and if they get it via 'inside' determinations or by blanket umbrella usage, it doesn't matter to them.

                    The Winchester 'precedent', if it had happened, would have meant nothing to IR35. The most likely case is that they settled because they expected to lose and it was getting too costly to continue. Or maybe because their political masters told them it was a really bad look for them to fight it and to stop.
                    I wouldn't necessarily disagree with your analysis and observations, however I would contend that this

                    To be clear, the only thing that possibly could have been established in case law is that a mid-contract 'inside' determination can confer employment rights. That's the most that the case would have proved if it had gone all the way to judgement
                    might have encouraged many more to follow the same line, thus perhaps applying some sort of constraint on HMRC's behaviour. I would also claim that the lack of forceful resistance to IR35 has emboldened HMRC to the point where now the war against IR35 is lost.

                    Comment


                      #30
                      Originally posted by JohntheBike View Post
                      If you'd care to provide your private Email address by private notification, I'll provide you with evidence to counter your opinion. I can't publish openly here.

                      I think you grossly underestimate the power of the Old Boy's network and those who are members of secret societies.
                      My email is obtainable by any sensible Google search.

                      I'm assuming that your comments are largely sarcastic or mocking but for the moment, if you have evidence I'll do you the courtesy of looking it over and think about whether my 40+ years working in tax has been a Matrix like waste of time.
                      Best Forum Adviser & Forum Personality of the Year 2018.

                      (No, me neither).

                      Comment

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