Reply to: If you're caught by IR35

[Batcher]

Although its been stated the answer is no, I wouldnt let that stop me investigating and following up such an 'employee' claim, especially against the client if their HR department has been complicit in getting banged to rights IR35 caught.

I dont think you've much chance against the agent but the client, if they supported HMRC's view that you did 'this like their employees' or did 'that like their employees' and were under the 'control of their manager's' etc etc, Id really go for them.

Contractors have in the past successfully sued companies for employee rights (not that I agree with that) so there is form for this.

My plan at the time was to certainly chase the client for the benefits as they had helped HMRC in my IR35 case, especially since HMRC had seemed to give them immunity from any comeback.

[northernladuk]

Absoulutely agree mate F**k any c**t that does that. Gives us professional business people a bad f***ing name.

This is the one I was thinking off..

Won his case for unfair dismissal as he proved he was part and parcel and a disguised employee but then lost it on appeal...

Contractor loses unfair dismissal claim at Court of Appeal | Contract Eye

Did HMRC come and have a chat with him afterwards?

There is some complexity about his engagement though but still... poor show.

[TestMangler]

Fair enough. I am thinking of the ones where a contractor is in place for so long he cries foul when they walk him as per the clients contractual rights. Contractor benefits from the LTD model but then wants permie rights. Cake and eat it situation.

Absoulutely agree mate F**k any c**t that does that. Gives us professional business people a bad f***ing name.

[northernladuk]

Fair enough. I am thinking of the ones where a contractor is in place for so long he cries foul when they walk him as per the clients contractual rights. Contractor benefits from the LTD model but then wants permie rights. Cake and eat it situation.

[TestMangler]

I ******* hate contractors that sue their clients for rights. Disgraceful. It's been done a number of times. I never see a response from HMRC saying well done in proving your a disguised employee can we have our money back please.

I know of one case where this was done for the 'right reasons' though NLUK. The bloke from who was with HP (prob the same guy from the IPSE Boards). If I remember rightly, the presence of an agency and gross payment were deciding factors.

It would be nice to see someone join the dots on this though. Lose IR35 and take unfair dismissal or some such thing against client, especially, as Bolshie said, if the client had been helpful to HMRC. A result like that would push clients and agents to correct the B2B nature of these contracts.

NB - I am fully aware that losing one doesn't automatically guarantee winning the other, but as the case law is the same for both, it would clarify some things in law.

[northernladuk]

I ******* hate contractors that sue their clients for rights. Disgraceful. It's been done a number of times. I never see a response from HMRC saying well done in proving your a disguised employee can we have our money back please.

[BolshieBastard]

As you're seen as an employee, would you be able to claim back from the company/agency you contracted with missed bonusses, holiday entitlement and other employee benefits?

Although its been stated the answer is no, I wouldnt let that stop me investigating and following up such an 'employee' claim, especially against the client if their HR department has been complicit in getting banged to rights IR35 caught.

I dont think you've much chance against the agent but the client, if they supported HMRC's view that you did 'this like their employees' or did 'that like their employees' and were under the 'control of their manager's' etc etc, Id really go for them.

Contractors have in the past successfully sued companies for employee rights (not that I agree with that) so there is form for this.

[Contreras]

As you're seen as an employee, would you be able to claim back from the company/agency you contracted with missed bonusses, holiday entitlement and other employee benefits?

As others have said, IR35 doesn't confer employment rights.

However nothing to stop you taking the 'employer' to tribunal anyway. Maybe they would settle. More likely they would prepare a strong case, ready to be tested in court, as to your status as an independent contractor - perfect fodder for your IR35 defence.

It's a risky strategy. However there was one chap on the PCGIPSE fora who reportedly did exactly this with the desired result.

[Batcher]

Ah right though it was recently, thanks for the info Batcher.

Didn't want to give exact dates as the HMRC probably read these boards. I'm with you though in that IR35 is dead and is only there to frighten newbies. I would still keep myself right, just in case

I don't lose any sleep over every little detail now though.

[Unix]

It was in the 2000s and started with the usual PAYE review letter which is a front for IR35. I've no idea what would trigger it, I think sometimes its just names out of a hat with these things. I had been operating in the same way for a few years beforehand so nothing out the ordinary as far as I can tell.

I think there was an element of issuing a demand to see who pays through fear but they certainly went through my books, expenses, contracts and clientcos to determine a figure.

Ah right though it was recently, thanks for the info Batcher.

[Batcher]

What do you think triggered this investigation, was this recently? TO me it sounds almost unenforceable and they just chance their arm hoping someone will pay without question

It was in the 2000s and started with the usual PAYE review letter which is a front for IR35. I've no idea what would trigger it, I think sometimes its just names out of a hat with these things. I had been operating in the same way for a few years beforehand so nothing out the ordinary as far as I can tell.

I think there was an element of issuing a demand to see who pays through fear but they certainly went through my books, expenses, contracts and clientcos to determine a figure.

[Unix]

No I didn't have to pay it.

They sent me all the details and the payslips but PCG gave me the information to use in a last ditch attempt against the HMRC person who had written the findings before I had to go to the commisioners. It obviously worked because I heard no more about it for 3 months or so.

QDOS kept contacting me after that asking if I wanted them to contact HMRC for an update but I told them to put it off until 6 months afterwards when they responded with the 2nd letter which was basically 'you are guilty but not enough evidence so we're dropping it'

ETA - the reason I wanted to wait longer was so we could say that due to the lack of communication we were considering the matter dropped.

What do you think triggered this investigation, was this recently? TO me it sounds almost unenforceable and they just chance their arm hoping someone will pay without question

[Batcher]

So he paid 52k without a fight, no way.

No I didn't have to pay it.

They sent me all the details and the payslips but PCG gave me the information to use in a last ditch attempt against the HMRC person who had written the findings before I had to go to the commisioners. It obviously worked because I heard no more about it for 3 months or so.

QDOS kept contacting me after that asking if I wanted them to contact HMRC for an update but I told them to put it off until 6 months afterwards when they responded with the 2nd letter which was basically 'you are guilty but not enough evidence so we're dropping it'

ETA - the reason I wanted to wait longer was so we could say that due to the lack of communication we were considering the matter dropped.

[Unix]

Read the post again.

Says he didn't pay a penny.

[DannyF1966]

So he paid 52k without a fight, no way.

Read the post again.