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Bit of advice? Venting...

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    Bit of advice? Venting...

    Evening all,

    Bit of an annoying situation, I started at a client last Jan originally for a three month contract, I had an IR35 Review with Qdos before starting, all was fine - found to be outside.
    As far as I was concerned working practices and contract all lined up for an outside IR35 contract.


    The client decided after three months that the project would move into another phase and asked me to extend, because that would take me over the date the April 2020 IR35 reforms were meant to come in I had a chat with the client and went through the QDos findings from my review, went through what I though the relevant bits of the working practices were to back this up. They agreed and said that when April 2020 came round I would be outside IR35.

    Of course the reforms were then delayed for a year. During 2020 ClientCo was merged with another big firm, I got a few more extensions and now find myself contracting to the same company but with a few new levels of management.

    Clientco have announced today that they have decided that from April 2021 all contractors will be inside IR35 and must go through one of three umbrella companies (I have another post looking for recommendations from the three in the umbrella thread).

    They arrived at this determination by filling in a questionnaire on QDOS, I have seen the answers they gave and I don't feel that the tie in with our actual working conditions or contract clauses.

    For example I think they have misunderstood what constitutes control (or I have) - This is a development role and because we do scrum and they have coding standards etc that is them having control, but QDOS didn't consider that an issue on any of my previous contracts (Or this one when it was reviewed).

    They also said that they have the right to re-assign us as they see fit within the company *without our consent or approval* which is just not the case, its in the contract that we have the right to refuse work and there are teams/roles within the company that if they tried to move me to them I'd give notice...

    Finally they have said that they would not accept a substitute which fair enough we've never tested this to my knowledge but its in the contract and they said last year that it would be Ok so theyve gone back on that too.

    So I guess Im asking what are my options? from the three above I think the only one that is a bit sketchy is the substitution - Although its in the contract its not been tested.

    Have I misunderstood what constitutes control? If so how can any development role ever be outside?

    Ive emailed them with a list of my concerns regarding their answers to the questionnaire but I don't have any confidence that this will have any effect, it would be useful if anyone has any input on the above so that when I speak to them I have a bit more info (Specifically around the control & reassignment).

    To be honest, I think I already know what will be said about this, Im just venting a bit because I'm annoyed.. lets see if there's an option I've not thought of.

    Probably going to start looking for new roles in march but if nothing comes up just going to bit the bullet and go inside for the three months that will remain of my contract after April, I know theres a risk of retrospective investigation but I dont want to be out of work just as the reforms come in, during a pandemic... I'd rather take the risk and keep the money flowing for a few months extra.. but I need to weigh that up too.

    Thanks in advance

    #2
    Originally posted by Snarf View Post
    For example I think they have misunderstood what constitutes control (or I have) - This is a development role and because we do scrum and they have coding standards etc that is them having control, but QDOS didn't consider that an issue on any of my previous contracts (Or this one when it was reviewed).
    I'm surprised QDOS didn't think it was an issue. There is a previous thread on exactly this linked below
    https://www.contractoruk.com/forums/...nban-ir35.html
    In that thread in my post there is a link to exactly what SDC is.

    I do think scrum/agile and all that is a worry. I think it meets SDC on a number of points which makes it a big issue. It doesn't meet all of them and the ones it might are arguable as you can see in that thread.

    I would say, however, that SDC was created before agile/scrum so I think the goal posts have moved in the way we work so I don't think the old SDC description is really fit for purpose anymore. The client isn't imposing it, it's the methodolgy. I can see how HMRC would come sniffing if they just have their definition of SDC in their grubby mits bu you can't fail SDC because of good practice in your industry. It's gonna take an argument to resolve it unfortuantely. IMO of course.
    They also said that they have the right to re-assign us as they see fit within the company *without our consent or approval* which is just not the case, its in the contract that we have the right to refuse work and there are teams/roles within the company that if they tried to move me to them I'd give notice...
    That's pretty standard. Every PM or developer that has moved on to a new project has fallen foul of this and it's very difficult for a company to see a resource and re-use it. They want to re-allocate you so the test is met. What you do at that point is your choice and not relevant to how the company want to treat you. Permies can also give notice if the don't want to move as well.

    You could try suggesting that you'd be OK doing this with a new SOW and treat it like a new piece of work they want you to consult on but it's a bit of a long shot that holding up with the client stands up in court and argues the toss that you are just another resource to them.
    Finally they have said that they would not accept a substitute which fair enough we've never tested this to my knowledge but its in the contract and they said last year that it would be Ok so theyve gone back on that too.
    I don't think they'ver really gone back on it par se as I think it was all lip serivce and they wouldn't have allowed it if you tried invoking it. Substitution in contracts has always been regarded as a sham with judges in cases saying that. It's there to make it IR35 friendly and would very very rarely be allowed. The fact it's there but never tested has been our only defence. As soon as it's asked and they say no then it's out the window. I'd snap their hand off and file the defense if they said that but when push comes to shove I'm not surprised they've gone back on it to be honest. RoS has always be a rickity defence.

    Have I misunderstood what constitutes control? If so how can any development role ever be outside?
    A good question. SDC is just one of the pillars but until it's brought up to speed with industry practices such as agile then it's arguable that it can. If other aspects are there then it's defendable so doesn't mean you are inside just becaues of this.
    Last edited by northernladuk; 17 February 2021, 01:35.
    'CUK forum personality of 2011 - Winner - Yes really!!!!

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      #3
      Essentially what's happened is that the company you originally worked at has taken on the risk appetite of the company they've merged with and their ways of working.

      I think the statement
      Clientco have announced today that they have decided that from April 2021 all contractors will be inside IR35
      is concerning.

      If your client has indeed issued a blanket determination for all contractors then they are (IANAL so do check) in breach of the regulation as that does not show the right level of care being taken.

      If they have taken advice from a good source, I am sure they have a proper form of words in their communication and you've chosen to interpret it differently.

      Comment


        #4
        I'd just accept they're not going to engage with PSCs from April (this thread should become a sticky as it'll be a common theme for the next couple of months) and you have to either join an Umbrella or leave.

        I think the most important thing for you to do now is actually clarify if they are (as you say) finding everyone inside IR35 (ie. issueing a determination) or are actually (as i suspect most clients will do) just no longer engage with PSCs.

        This could be a factor in whether you decide to leave or stay.

        Comment


          #5
          As LM points out

          I really doubt they've said everyone is inside IR35 - what they will be saying is that they won't be using labour provided via Personal Service Companies or words to that effect.
          merely at clientco for the entertainment

          Comment


            #6
            Originally posted by Paralytic View Post
            I'd just accept they're not going to engage with PSCs from April (this thread should become a sticky as it'll be a common theme for the next couple of months) and you have to either join an Umbrella or leave.
            I think there is a terminology issue you have to be very careful about as the options could be different. They haven't said they won't engage with PSC's. They've said everyone is inside. The result might be the same but the path is very different. A blanket inside determination is illegal I believe and there is potential actions that can be taken. Surely every single gig can't be inside so options for challenging this and taking it all the way. I think someone has to do this to make a statement about how unfairly HMRC's rules are being. We've got to hope someone stands up.

            Stating they aren't going to engage with PSCs means they don't have to do a determination which closes the above option.

            Blanket inside is not the same as not engaging with PSC's. Point of pedantry but an important one.
            'CUK forum personality of 2011 - Winner - Yes really!!!!

            Comment


              #7
              Originally posted by northernladuk View Post
              I think there is a terminology issue you have to be very careful about as the options could be different. They haven't said they won't engage with PSC's. They've said everyone is inside. The result might be the same but the path is very different. A blanket inside determination is illegal I believe and there is potential actions that can be taken. Surely every single gig can't be inside so options for challenging this and taking it all the way. I think someone has to do this to make a statement about how unfairly HMRC's rules are being. We've got to hope someone stands up.

              Stating they aren't going to engage with PSCs means they don't have to do a determination which closes the above option.

              Blanket inside is not the same as not engaging with PSC's. Point of pedantry but an important one.
              Yes, which is why i said (cut from you quoting my post):

              I think the most important thing for you to do now is actually clarify if they are (as you say) finding everyone inside IR35 (ie. issueing a determination) or are actually (as i suspect most clients will do) just no longer engage with PSCs.

              Comment


                #8
                Originally posted by Paralytic View Post
                Yes, which is why i said (cut from you quoting my post):
                Correct but again, you've got to be very careful with the statement. Correcting a wrong statement later isn't helpful, particularly when people are trying to learn what's going on.
                'CUK forum personality of 2011 - Winner - Yes really!!!!

                Comment


                  #9
                  Originally posted by northernladuk View Post
                  Correct but again, you've got to be very careful with the statement. Correcting a wrong statement later isn't helpful, particularly when people are trying to learn what's going on.
                  I think it's premature to say it was wrong. I'd bet all my Dogecoin that the client has not determined everyone inside.

                  Comment


                    #10
                    Originally posted by Paralytic View Post
                    I think it's premature to say it was wrong. I'd bet all my Dogecoin that the client has not determined everyone inside.
                    And now you are guessing. The OP has stated a fact and it's all we have to go on. You mentioned two different situations in your post. One of them has to be wrong.
                    'CUK forum personality of 2011 - Winner - Yes really!!!!

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