SDS / IR35 responsibility

[nmmlon124]

Hi all,

new to the forum! I've been contracting for smaller companies for several years and those projects were always outside IR35 due to the nature of the work. I would like to take on a more regular software development contract now and get approached on LinkedIn often about 'outside IR35' roles. I'm confused as to what information to ask for to make sure it really is outside of IR35 - or do I even need to do that at all as with UK end clients it's their responsibility? Does it depend on the size of the end client?

For example a recruiter emailed me today with an Outside IR35 role (according to them) - but the job description includes phrases such as "Fulfill additional duties as requested." and "embedded into our team". None of which sounds very 'outside' to me. Is it sufficient to get an SDS from them and make it their problem?

Similarly I've read posts here about being added to company wide meetings or offered training. Where such actions conflict with the 'outside' nature of the role, should I decline them or is it "not my problem"?

Furthermore these are day-rate contracts and generally don't place any financial risk on my side.

I don't really want to educate potential clients on IR35 requirements but also don't want to put myself into a potential risk situation.

Input much appreciated, thanks!

[PerfectStorm]

One thing to be aware of is that some clients are able to make use of the small company exemption to make it so that they can call it what they like, but that legally it's the contractors responsibility - as such you're operating under effectively the old rules and it's you that needs to do the legal assessment (via QDOS etc), ask the questions, and very much live it as if its outside IR35 in order to count.

[jamesbrown]

Small clients (Companies Act 2006) or overseas client (no UK presence) = Chapter 8, aka the old rules, YourCo is responsible and liable.

Everything else = Chapter 10, aka the new rules, the end client is responsible for issuing a timely SDS and the Fee Payer is liable once issued, in the first instance (for an outside determination that is wrong). At least, nominally, by which I mean, read this:

https://forums.contractoruk.com/acco...contracts.html

[nmmlon124]

Thanks PerfectStorm. AFAIK many of these are small companies.

I'd love to hear examples of true outside IR35 contracts and where to find them!

[northernladuk]

Thanks PerfectStorm. AFAIK many of these are small companies.

I'd love to hear examples of true outside IR35 contracts and where to find them!

There is nowhere to find just outside IR35. Clients have a need for contractors which is the standard, the next level is the tax status. The work and requirement is the same, they still need contractors. You just have to trawl the boards to find clients that understand and are happy to treat contractors like contractors. Just pure legwork. There is no quick fix. If there was we'd all be doing it.

Nothing wrong with inside gigs though. Put it all in the pension and it could be more efficient than an outside gig in the short term. At worst you treat it like a poorly paid gig and move on. I really don't get the whole 'ill never work inside' line. It's still income like a poorly paid outside gig and it's only temporary.

I've very sceptical that many gigs in small companies are outside. It's very difficult to work purely on a SoW with so few people and not be asked to do other things by the client. It will be all hands to the pumps and people wear many hats. It's the only way a small business can work so to think you are outside, can't be controlled and can substitute is pretty unlikely.

You've given an example of this. Will be expected in big clients as well but more so in smaller ones.

And yes if the client wants to trash the outside status with training etc it is your problem. We don't know what will happen when someone gets caught. The client will obviously try and push it down the line. Is it possible they say the contractor also has a responsibility to act accordingly and if they fail to do so they liability could end with the contractor. We just don't know. Because of that then yes it's your problem.

[SueEllen]

Thanks PerfectStorm. AFAIK many of these are small companies.

I'd love to hear examples of true outside IR35 contracts and where to find them!

You find a contract that is outside, ensure that the contract wording is outside and you ensure due to your ways of working it stays outside.

So, for example, if you are asked to a company event but not any other suppliers you make your polite excuses and don't turn up OR you pay for yourself.

Remember agents don't know the day-to-day of what you are doing.

[northernladuk]

You find a contract that is outside, ensure that the contract wording is outside and you ensure due to your ways of working it stays outside.

So, for example, if you are asked to a company event but not any other suppliers you make your polite excuses and don't turn up OR you pay for yourself.

This.

Remember agents don't know the day-to-day of what you are doing.

And neither do many clients either. They may go through the steps of an SDS, even bringing in the likes of QDOS to help them, but as soon as it's done the client managers you work with will just go back to business as usual and do what they see fit so ultimately up to you to protect the Outside status if the client is failing to do so.