Originally posted by LondonManc
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Previously on "Returning as a contractor after voluntary redundancy"
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Originally posted by VectraMan View PostHow will they know? You don't have to inform anyone who your clients are, so it's only if you get investigated that they'll find out.
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Originally posted by WordIsBond View PostMaybe possibly. You are certainly more likely to be investigated if you were a PAYE employee with your current client
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If it's a TUPE situations then surely you're looking at maintaining perm status and the trimmings you're currently furnished with?
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Originally posted by Contreras View PostYes, perhaps I should have added: based on the info given, at face value, and on balance of probabilities, IMHO.
Originally posted by Contreras View PostThe point about risking tax-free status on the VR stands however.
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Originally posted by Contreras View PostTake the VR by all means, but don't expect to return to the same employer/client because a) it won't be worth it after deduction of IR35, or b) it won't last very long.Originally posted by WordIsBond View PostNot sure how we can know this.
... OP may well be in a position where it makes sense for both parties to continue a long time, even with paying him enough inside IR35 to make it well worth it.
It could equally be argued that the TUPE guarantees only last for a finite period anyway.
The point about risking tax-free status on the VR stands however.
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Originally posted by fool View PostIf your current company makes you redundant before the take over, you might actually be okay, if it's the new one afterwards, you're prob ir35'd.
If you were on site before and now you work from home, that helps, because one of the big questions is, "What changed in your working practices?" WFH instead of on-site makes it easier to argue that they are not controlling how/when/where you work. It's still a tough case to argue unless you can point to a lot of other things that changed, too.
Doing fixed-price jobs would also strengthen your case. That would be an important change in working practice. Plenty of case law suggesting that employees don't bid on fixed price jobs, that's a business-to-business transaction.
When I left employment, I signed three contracts with my former employer. The first was for general services for six months, to ease their transition, same stuff I was doing before (though fewer hours and some things changed), IR35 caught. The other two were for specific, well-defined tasks for which I submitted fixed price bids, and I didn't do all the work myself, either. Easily outside IR35.
The point is that inside or outside is not an all or nothing thing, every contract is evaluated on its own, and you can do contracts for a former employer outside IR35 if they are willing to work with you. So if there are tasks that you can split out as fixed price, and your client is happy for you to do that, you may be generally IR35 caught but be able to do some work outside it.
If you go this route, you'd want formal bid proposals on company letterhead, signed contracts, etc. Fixed bid jobs carry risk, of course. But clients might like you taking that risk from them and pay extra for it, and getting outside IR35 on some of your earnings helps compensate you for that risk, too.
There's some recognition, at least in HMRC guidance, maybe in case law as well, that someone's first contract may be with a former employer. If you just keep renewing with them for the next five years, there's not much you can say -- everything will be seen as IR35 caught. If you move on next year, your contract with them for this year is likely IR35 caught, but you may be able to split some of it off into non-IR35 work. If you do achieve this kind of split, make sure any pension contributions from your company come out of the IR35 revenue.
Originally posted by Contreras View PostTake the VR by all means, but don't expect to return to the same employer/client because a) it won't be worth it after deduction of IR35, or b) it won't last very long.
I could have continued under IR35 with my former employer for a long time. I have skills and (especially) experience for which they would have been willing to pay, easily enough to justify continuing within IR35. But I wanted to do other things, too. OP may well be in a position where it makes sense for both parties to continue a long time, even with paying him enough inside IR35 to make it well worth it.
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So not contracting opportunity here then? HR is your best bet then. They should be advising you every step of the way.Last edited by northernladuk; 11 August 2015, 09:40.
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Originally posted by Gomez View PostI'm grateful for all the replies so far but I think it would help if I fleshed this situation out a bit more fully as it's certainly not straightforward and it might bring a new slant to any further responses.
Essentially, I am being faced with a TUPE situation from a private company whose contract with a client is ending. I have provided services to the client for a number of years (not exclusively) and am now in scope to be transferred to the client. There is a mismatch between some of the terms and conditions and benefits that I currently enjoy but the biggest issue seems to be being able to work from home in the future as I have previously done. The client may offer a voluntary redundancy option if and when I TUPE over due to me being remotely located to their offices.
The entire point of redundancy is that the role or similar roles will no longer exist in the organisation regardless of whether it's the new one you are TUPEd to or the old one.
In the case of voluntary redundancy were a company wishes to reduce head count they will be advised by lawyers not to go anywhere near you in terms of engaging you as any form of worker for a minimum of a year but possibly longer in the same or similar role to ensure you cannot take them to court.
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Originally posted by fool View PostIf your current company makes you redundant before the take over, you might actually be okay, if it's the new one afterwards, you're prob ir35'd.
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Originally posted by fool View PostIf your current company makes you redundant before the take over, you might actually be okay, if it's the new one afterwards, you're prob ir35'd.
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If your current company makes you redundant before the take over, you might actually be okay, if it's the new one afterwards, you're prob ir35'd.
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Whichever way it is dressed up this is IR35 caught.
Whichever way it is dressed up the VR becomes taxable.
There are theoretical possibilities to return to a employer/client outside IR35 but this is not one of them.
Take the VR by all means, but don't expect to return to the same employer/client because a) it won't be worth it after deduction of IR35, or b) it won't last very long.
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Again that makes very little sense, if your benefits are in your existing contract (working from home can be called a benefit) then under the TUPE rules they have to maintain them. You really need to look into the TUPE rules, as an employee you have a LOT of protections in there which it looks like they're trying to blatantly bypass.
They can't make you redundant if the role is still alive and offering to contract you to fill your current role is pretty much stating up front the role isn't redundant.
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I'm grateful for all the replies so far but I think it would help if I fleshed this situation out a bit more fully as it's certainly not straightforward and it might bring a new slant to any further responses.
Essentially, I am being faced with a TUPE situation from a private company whose contract with a client is ending. I have provided services to the client for a number of years (not exclusively) and am now in scope to be transferred to the client. There is a mismatch between some of the terms and conditions and benefits that I currently enjoy but the biggest issue seems to be being able to work from home in the future as I have previously done. The client may offer a voluntary redundancy option if and when I TUPE over due to me being remotely located to their offices.
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