Sky's current thrust

[SussexSeagull]

Further to the abvoe, a standard letter has now been issued to All contractors. Minimal information, no understanding, standard email drop box with no assurance there is anyone on the receiving end of it with any more understanding of IR35 than the author of this letter.

The 3rd party consultants in this case are EY.

"1. Control - we exercise a level of control over how, what or where you work.

2. Substitution - there is no ability for you to provide a substitute.

3. MoO - we are obliged to provide work and you are obliged to accept it."

I think EY have had their determination bought.

Good luck to people fighting this one at Sky.

1 - Quite probably true
2 - Doesn't that depend somewhat on the agreed contract?
3 - Depends largely on working practices. If, has been suggested, contractors have been there a decade then quite possibly true but not necessarily.

[Acme Thunderer]

1 - Quite probably true
2 - Doesn't that depend somewhat on the agreed contract?
3 - Depends largely on working practices. If, has been suggested, contractors have been there a decade then quite possibly true but not necessarily.

For 2 - If the client says they won't accept a substitute on any basis then the clause is a sham.
For 3 - What about if they asked you to do some other work whilst waiting for something and you say "No". If they then bin you entirely because of it, would that not point at the client having a strong expectation of MoO?

[LondonManc]

Tend to agree with some of your points. There are some proper contractors there. But also some blatantly inside ones. I don’t think having a separate car park enough to be outside.

I’ve witnessed contractors getting gift vouchers and having awards for working late. In the exact same way as permies.

Also contractors going to fully paid for Xmas and summer parties as well as team building sessions.

Also as you say just being kept on noddy jobs till the next project rolls around.

Also contractors being sent on TDD courses where companies come in to run courses.

Very rarely have I seen people work from home.

It’s clear what Sky thinks. Sky also have quite successfully hired a lot of permanent staff in the last 10 years and their graduate programme is awesome. Maybe they’re not too bothered if some leave. 10 years ago imo it would have crippled them.

The quality of the permies 7 years ago was mixed to say the least.Mind you some of the contractors were too - had a cv of one of them turn up on a friend's desk a few years later, claiming he'd done stuff that he definitely hadn't done!

Never saw the permie benefits, but I was probably more interested in actively avoiding them!!

Worked my hours, with a 1pm finish on Fridays making hours up during the week to turn Friday into a full prof day.

[LondonManc]

Further to the abvoe, a standard letter has now been issued to All contractors. Minimal information, no understanding, standard email drop box with no assurance there is anyone on the receiving end of it with any more understanding of IR35 than the author of this letter.

The 3rd party consultants in this case are EY.

"1. Control - we exercise a level of control over how, what or where you work.

2. Substitution - there is no ability for you to provide a substitute.

3. MoO - we are obliged to provide work and you are obliged to accept it."

I think EY have had their determination bought.

Good luck to people fighting this one at Sky.

Sounds like a pushed over the desk, no lube shafting.

1. Not sure "what you work" means but when I was at Sky, there was nobody capable of telling me how to do the work and I agreed with my hiring manager where and when I would work.
2. Not the be all and end all.
3. MoO - "sorry but if it isn't in my contracted deliverables, I'm not insured to carry it out." Given they wanted higher levels of insurance cover than Barcap, then they need to appreciate what MyCo's insurance premium covers.

[eazy]

2. No substitution

HMRC ESM0530 – “It is the right to provide a substitute that is important, not whether that right is exercised. The fact that an engager can limit the choice to a suitable person does not necessarily mean that there is no real right. However, if the engager has an unlimited right to veto substitutes then this may mean that the reality is the worker has to provide the services personally and the right of substitution is not genuine.”

[simes]

HMRC ESM0530 – “It is the right to provide a substitute that is important, not whether that right is exercised. The fact that an engager can limit the choice to a suitable person does not necessarily mean that there is no real right. However, if the engager has an unlimited right to veto substitutes then this may mean that the reality is the worker has to provide the services personally and the right of substitution is not genuine.”

And if we agree that it is just one of the three pillars required to keep people Outside IR35, then that, right there, is sufficient to any and all requirements for all clients.

How would proving otherwise go?

HMRC - We believe you have unlimited right to veto?
Client - No we don't.
But your contractor never supplied a sub.
He never asked.
And if he did?
We would meet his sub for a chat.
Has anyone asked?
Yup.
And how did that go?
In the end, the contractor just went on leave for a week.
But we still think you have an unlimited right....
And you have a legal right to your thoughts. And now, you have a legal necessity to prove it. Please close the door on your way out.

[simes]

I was going to stick this in a separate thread, but bearing in mind it has EY's hands all over it, it may as well just reside thumpingly here.

Samsung's current thrust, is all too similar to that of Sky's. (Who was it who said the Big Four had got themselves a minor cash cow in this climate?) An email to a friend, as below.


As part of the review, and following additional investigation in working practices within the company, Samsung has amended certain answers in the survey to align with these standard working practices. Accordingly, Samsung considers that:
o No contractor has the ability to automatically provide a substitute, i.e. an unfettered right;
o No contractor has the right to set their core working hours;
o There is an expectation to receive work under the contract, and no right to refuse work i.e. there is Mutuality of Obligation.

Your contract
Your current contract is due to end on <date> 2020. As it’s confirmed that you fall within IR35, Samsung is unable to extend your contract on your current terms beyond this date.

Your options
You may already be in discussion with your manager as to what options you may like to take. Below is an outline of the 3 options available to you.

1) You may choose to remain as a LTD company Contractor

If you’d like to remain as a LTD company Contractor, you will be required to sign a new consultancy agreement that will commence on Monday 2nd March 2020. The EY tool has determined that your engagement with Samsung is Deemed Employment and the new agreement will reflect this status. The end date of this agreement will be decided by your manager & Head of Department. There will be no change to your day rate at this time.

Your agency will be required in the agreement to process your PAYE deductions. As your engagement is Deemed Employment, this is a legal requirement for all payments made by Samsung to your LTD company after the effective date of the legislation (6th April 2020). As we have 30-day payment terms, this will apply to all payments made under the new agreement. If they are unable to process deductions, we will work with you to find a solution; one of which could be to introduce you to our Agency Partner, March Recruitment – who were selected as a result of a tender process. Samsung’s Account Manager from March Recruitment will be at Samsung House on 14th & 22nd January for an optional 1:1 meeting with you. If you would like to book a meeting, please email [email protected]. If you opt not to meet March or are unable to attend these dates, please email them to arrange to do this over phone or email.

2) You may choose to convert to a PAYE (Pay As You Earn) temp

You may wish to remain with Samsung but, instead, as a PAYE temp. This would see you move to a lower day rate from Monday 2nd March 2020. This difference in day rate will only reflect the fact you would receive a temp bonus, paid annual leave and auto enrolment in a pension scheme.

For more details, please speak with your Manager, they will be able to discuss with you further.

3) You may choose not to extend your contract with Samsung

If you would not like to explore these options above, please let your manager know and the leaver process can be initiated. Your current contract will not be renewed or extended, your end date of Friday 28th February 2020 will remain.

I have a question about point 1 of their three options. Why send pay net of tax and NI to a person's LtdCo.? Indeed, based on their wording, how would one Ever remain as a LtdCo contractor?

Thoughts?

[eek]

I was going to stick this in a separate thread, but bearing in mind it has EY's hands all over it, it may as well just reside thumpingly here.

Samsung's current thrust, is all too similar to that of Sky's. (Who was it who said the Big Four had got themselves a minor cash cow in this climate?) An email to a friend, as below.


As part of the review, and following additional investigation in working practices within the company, Samsung has amended certain answers in the survey to align with these standard working practices. Accordingly, Samsung considers that:
o No contractor has the ability to automatically provide a substitute, i.e. an unfettered right;
o No contractor has the right to set their core working hours;
o There is an expectation to receive work under the contract, and no right to refuse work i.e. there is Mutuality of Obligation.

Your contract
Your current contract is due to end on <date> 2020. As it’s confirmed that you fall within IR35, Samsung is unable to extend your contract on your current terms beyond this date.

Your options
You may already be in discussion with your manager as to what options you may like to take. Below is an outline of the 3 options available to you.

1) You may choose to remain as a LTD company Contractor

If you’d like to remain as a LTD company Contractor, you will be required to sign a new consultancy agreement that will commence on Monday 2nd March 2020. The EY tool has determined that your engagement with Samsung is Deemed Employment and the new agreement will reflect this status. The end date of this agreement will be decided by your manager & Head of Department. There will be no change to your day rate at this time.

Your agency will be required in the agreement to process your PAYE deductions. As your engagement is Deemed Employment, this is a legal requirement for all payments made by Samsung to your LTD company after the effective date of the legislation (6th April 2020). As we have 30-day payment terms, this will apply to all payments made under the new agreement. If they are unable to process deductions, we will work with you to find a solution; one of which could be to introduce you to our Agency Partner, March Recruitment – who were selected as a result of a tender process. Samsung’s Account Manager from March Recruitment will be at Samsung House on 14th & 22nd January for an optional 1:1 meeting with you. If you would like to book a meeting, please email [email protected]. If you opt not to meet March or are unable to attend these dates, please email them to arrange to do this over phone or email.

2) You may choose to convert to a PAYE (Pay As You Earn) temp

You may wish to remain with Samsung but, instead, as a PAYE temp. This would see you move to a lower day rate from Monday 2nd March 2020. This difference in day rate will only reflect the fact you would receive a temp bonus, paid annual leave and auto enrolment in a pension scheme.

For more details, please speak with your Manager, they will be able to discuss with you further.

3) You may choose not to extend your contract with Samsung

If you would not like to explore these options above, please let your manager know and the leaver process can be initiated. Your current contract will not be renewed or extended, your end date of Friday 28th February 2020 will remain.

I have a question about point 1 of their three options. Why send pay net of tax and NI to a person's LtdCo.? Indeed, based on their wording, how would one Ever remain as a LtdCo contractor?

Thoughts?

That is exactly what you are supposed to do under IR35 - the company withholds the Employment NI and other charges and your company receives the remainder which needs to be passed on to you after your PAYE taxes are deducted.

I'm very surprised they don't offer an umbrella option instead of 1 - a good umbrella will offer pension options beyond what you would get under PAYE as I show at https://www.contractoruk.com/forums/...ml#post2715499

[NotAllThere]

Thoughts?

It's nice that they refer to their consultants as I've always thought of them. Every one an EY tool.

[GhostofTarbera]

It's nice that they refer to their consultants as I've always thought of them. Every one an EY tool.

I’ve a friend at EY he said business was booming for 1st time in years as they replace experienced contractors with fresh faced grads


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