In, out, in, out shake it all about!

**Manic** · 11 April 2018, 06:42

So what's the question.....do we think you are inside IR35? Impossible to state without a full review of working practices and remember that working practice will trump any contract. Although the fact you have been asked to be in the office 9-5 in itself is not going to put you in IR35.

**mudskipper** · 11 April 2018, 07:08

It may or may not be useful in this case, but IPSE have a shiny new guide for clients on how to successfully work with contractors.

https://www.ipse.co.uk/uploads/asset...f3a10d525e.pdf

Make sure the language you use when speaking to the client is B2B - refer to yourself as a supplier, remember not to refer to clientCo as "we" (so it's 'your customers', not 'our customers') - that kind of thing. But if they really just want a temporary employee, and you can't convince them that that's not what they should be doing, then you may be better to look for something else, and/or suck it up and declare yourself inside. If you decide the latter, then if you can afford to, you can mitigate the tax by making large pension contributions.

**SueEllen** · 11 April 2018, 07:10

Originally posted by WLB2018 View Post

Greetings,

Long time lurker, first time poster.

Firstly, just wanted to say what a great forum, the links down the side are exceptionally useful

(I know how to use the search too (NorthernLadUK).

Okay. I had hoped my first post wouldn't make me look stupid, but alas I have a feeling it will do

So my last contract finished in December and decided to take some time off, one thing lead to another and only recently did I decide to go for another contract. In this instance it was through an agency (one I had not used before). The contract between my LTD and the agency came back as clean (outside IR35). YAY so far...

When I started the person doing the induction was off sick for 2 weeks so I did general bits and pieces, but no discussion around NDA's, working hours or even objectives for the first 6 months (albeit a number of things were in the Job advert and discussed during the interview).

Week 3 roles in and the person returns from sick leave. I then spend 2 days being introduced to people and have various meetings about doing this and that.

Through these meetings it comes out that a) I will 'report to' the FD (no real issue there, I need to let someone know I have done the work they want me to do right!) b) that I will be expected to work between 9 and 5 on site each day (hmm smells a little like SDC to me) and c) they are asking me to in essence be an 'interim' person to fill a role while a restructure takes place over the next 6 months.

I have been asked to sign an NDA but when I suggested we formalise the work the client wishes me to do they said it wasn't needed.

So where do I stand, the contract I have is between the LTD company and the agent, which is outside IR35, but the work I am doing for the client isnt...

I do plan on speaking to the agent on their return from holiday... I can speak to my accountant and suggest he makes provision for the role being inside (just in case). But kinda feel the agent sold me down the river at this moment in time.

Thanks in advance.

WLB

You aren't necessarily inside, and in my experience agents know SFA about what roles involve and working hours so you always need to ask the client.

If you didn't ask the actual client at interview what hours they expected you in then you have to expect 9-5. If there is a pressing personal reason why you can't do 9-5 tell the client, then try and agree with the client a consistent time that you are in by everyday. After you have done that tell the agent in writing though they won't give a stuff as they are generally liars.

In regards to the role how much autonomy do you have? If it's loads then you aren't under SDC.

**WordIsBond** · 11 April 2018, 08:35

If you think you are inside, then operate inside. Pay all of your salary for the year out of this contract. Same with pension contributions, and consider juicing up your pension contribution for the year, and attribute it all to this contract. It's not the end of the world, especially if the next contract is outside.

If you think you have a legit case for being outside, but know it is borderline, it depends on your risk tolerance. If low risk tolerance, do as above. If high, carry on invoicing, but you might want to set some funds aside just in case you do get investigated and have trouble. If medium tolerance, make sure you are a member of IPSE and also buy QDOS TLC35 or comparable.

No one can give you a reasonable answer as to whether you are inside. The 9-5 thing doesn't help but it is hardly a major factor. You are going to have to assess this yourself.

The agent doesn't care. The stuff you are talking about (9-5, temp replacement) is probably not in his contract, he probably wasn't told about them, it's not his problem. He's probably not done anything wrong, it's probably just a communication breakdown for which you have some responsibility if you didn't ask questions about this at your interview.

An NDA has nothing to do with IR35. I have to sign an NDA every time I turn around, it seems.

I'd approach the client with, "For my own company's records, I'd like a formalised schedule of work / projects. It's not contractual, it's just for clarity, and of course we can modify it later if needed." This reminds them that you aren't an employee, you have your own company. Even more importantly, it is likely to help prevent further miscommunications or any suggestions down the road that you haven't done what was expected. It's just more professional, even if you end up inside IR35. But it also will help you argue that you are outside IR35, if you think you've got any chance of making that case.

**Hobosapien** · 11 April 2018, 08:41

When you say the contract came back as 'clean (outside IR35)' was this via a reputable independent contract review service that also asked for details of working practices (even though you can't be sure of them before the contract starts as you've found)?

I'd be getting another review with updated working practices now you know how they look for real. If still outside then back up with insurance. If now inside then at least you know where you stand and can sleep easier.

**pr1** · 11 April 2018, 09:04

The reality is the chance of an investigation is around 1/1000, and with a third party reviewed outside IR35 contract, about another 1/100-1/1000 chance of losing an investigation if you have professional representation, so the chance of you being retrospectively caught inside IR35 are very very very very slim. With an approved/reviewed contract you will almost certainly be able to get QDOS TLC35 insurance, which will cover you for the difference any way

Some people on here will say you should declare inside IR35 anyway, but that is a decision that effectively could cost you (tens of) thousands of pounds depending on how long you stay in that contract, whereas QDOS TLC35 / IPSE+ membership will only cost you hundreds of pounds

**WLB2018** · 11 April 2018, 18:58

Thanks everyone for taking the time to respond.

I wasn't necessarily asking if it was in or out, just wanted peoples general thoughts given the information I am able to supply.

thanks again.

WLB

In, out, in, out shake it all about!