Reply to: Supervision Direction and Control

[northernladuk]

Yeah, you're right, my wording was sloppy.

I knew what I meant, if this forum software was any good it would translate it for me and post what I meant. This cannot be my fault, after all, someone else must take the blame.

I blame immigration...

[WordIsBond]

I've regarded SDC as more how it's done rather than what is done. Am I simply looking at semantics here? Surely the what is done is the deliverable specified in the statement of work - it's what you're there for.

Yeah, you're right, my wording was sloppy.

I knew what I meant, if this forum software was any good it would translate it for me and post what I meant. This cannot be my fault, after all, someone else must take the blame.

[dx4100]

I've been working at a company for a...while now (2.5 years!). At first the work was given to me and on a case by case basis and I'd be able to do it in my own time and use my own equipment.

As time went on I found myself being more included into the team and the company. I now have a direct manager there who not only structures my work but also tells me how to do it.

Additionally they're wanting to impose codes of conduct and they want me to be included in that. I'm worried that this almost now certainly places me under SDC.

What do you think the best approach is for me to reach an amicable solution, one that perhaps lets me still keep them as a client? (On another note I'm not keen on being told how to behave haha)

I think you have three options...

1. Act as IR35 caught and stump up the extra tax etc
2. Leave
3. Grow a set of bollocks and start acting like a contractor and stop accepting slowly becoming an employee.

I spent seven years working with a client and remained independent. You only become an employee if you allow it to happen and you allow the client to stop seeing you as being independent.

Grab a IPSE arrangement letter and get them to sign it might be a good starting point to get you back on track.

[jamesbrown]

I've regarded SDC as more how it's done rather than what is done. Am I simply looking at semantics here? Surely the what is done is the deliverable specified in the statement of work - it's what you're there for.

We shouldn't forget that there's no case law w/r to an "SDC Test", only on control more generally, which includes: what; when; where; and how. The "SDC Test", insofar as it has been communicated, is concerned with the "the manner in which the services are performed", so it is focusing on the "how" element of control. In short, you're right. A set of requirements is not an indication of SDC. A prescription for how those requirements are delivered is an indication of SDC.

Also, remember that the "SDC Test" is not directly relevant for a contractor that is operating through a Limited Company (that is not a Managed Service Company) and whose contracts are outside of IR35. It's only indirectly relevant insofar as the "SDC Test" is concerned with the "how" element of control, which is part of IR35. In other words, if you're subject to a high degree of control over the manner in which the services are delivered, you should be somewhat concerned (personally, I've always thought this was a very good indicator), but that isn't the entirety of what matters, at present, in law, whether for PAYE/NI or for T&S.

[LondonManc]

If you are told what to do, monitored, and reported against, I'd say SDC is a "slam dunk case."

WFH would only help in the cases where it could be argued either way -- then, it gives you a further argument that "nobody is looking over my shoulder, I WFH." In the borderline cases, grab every little thing you can to tip the balance your way.

I've regarded SDC as more how it's done rather than what is done. Am I simply looking at semantics here? Surely the what is done is the deliverable specified in the statement of work - it's what you're there for.

[WordIsBond]

Hmm interesting.. I didn't think where you did what you were told to do, monitored and reported against would have made much difference but I can see that any addition to your argument will help.

If you are told what to do, monitored, and reported against, I'd say SDC is a "slam dunk case."

WFH would only help in the cases where it could be argued either way -- then, it gives you a further argument that "nobody is looking over my shoulder, I WFH." In the borderline cases, grab every little thing you can to tip the balance your way.

[dingdong]

Given your manager has already being telling you how to do the work I don't think you'd have any defense to SDC.

HRMC will approach your client and ask them directly if they've supervised your work. If the client (and it usually won't be your manager who responds) says they do supervise contractors working for them you'll find it very difficult to defend your working arrangements. The odd working from home won't help given large numbers of permanent employees work from home these days.

[northernladuk]

True, but only if SDC is a slam-dunk case. If SDC is debatable at all, WFH can help you argue that you aren't under it.

But the biggest value of WFH in a case like this is that it can help to break the client's perception that you are part & parcel, and can help to change the client's mindset and behaviour. So don't see it as a silver bullet (it's not even close to that), but it CAN help change the whole narrative here, which is sounding pretty bad for IR35.

Hmm interesting.. I didn't think where you did what you were told to do, monitored and reported against would have made much difference but I can see that any addition to your argument will help. Where WFH is the exception then yes I can see how it can break the part and parcel. If you slot in to an existing WFH culture I guess it could indicate the other way.

EDIT : Didn't see this but Chimp makes the perfect case where it would be a good string to your bow being the exception..

This client I contract at does not have a WFH policy and employees are only ever allowed to WFH on very rare occasions if pre-planned and a good reason is given. I have differentiated myself by having a clause in my (direct-to-client) contract that states "the consultancy" can choose to carry out its activities wherever it chooses.

Management here hate me for that and have often tried to rope me in 5 days a week, but I always WFH once, twice or thrice a week. And they have no idea what I work on, though clearly they know I am getting on with it.

[northernladuk]

NLUK, right there, in a nutshell.

OK. Maybe I should have highlighted the bit I think was right, and the bit after that I didn't agree with...

[VillageContractor]

I've been working at a company for a...while now (2.5 years!). At first the work was given to me and on a case by case basis and I'd be able to do it in my own time and use my own equipment.

As time went on I found myself being more included into the team and the company. I now have a direct manager there who not only structures my work but also tells me how to do it.

Additionally they're wanting to impose codes of conduct and they want me to be included in that. I'm worried that this almost now certainly places me under SDC.

What do you think the best approach is for me to reach an amicable solution, one that perhaps lets me still keep them as a client? (On another note I'm not keen on being told how to behave haha)

Difficult to answer without any context or examples - the client will give you work but is allowed to put a deadline on said work.

He can give you work that has to comply with their technical design docs.

To me that isn't SDC.

How are they telling you to behave? As long as you're being professional then I'd say sod them

[ChimpMaster]

True, but only if SDC is a slam-dunk case. If SDC is debatable at all, WFH can help you argue that you aren't under it.

But the biggest value of WFH in a case like this is that it can help to break the client's perception that you are part & parcel, and can help to change the client's mindset and behaviour. So don't see it as a silver bullet (it's not even close to that), but it CAN help change the whole narrative here, which is sounding pretty bad for IR35.

This client I contract at does not have a WFH policy and employees are only ever allowed to WFH on very rare occasions if pre-planned and a good reason is given. I have differentiated myself by having a clause in my (direct-to-client) contract that states "the consultancy" can choose to carry out its activities wherever it chooses.

Management here hate me for that and have often tried to rope me in 5 days a week, but I always WFH once, twice or thrice a week. And they have no idea what I work on, though clearly they know I am getting on with it.

[WordIsBond]

- WFH, even better if you can have this written into your contract. - Pemies can work from home. This isn't a differentiator really.

True, but only if SDC is a slam-dunk case. If SDC is debatable at all, WFH can help you argue that you aren't under it.

But the biggest value of WFH in a case like this is that it can help to break the client's perception that you are part & parcel, and can help to change the client's mindset and behaviour. So don't see it as a silver bullet (it's not even close to that), but it CAN help change the whole narrative here, which is sounding pretty bad for IR35.

[LondonManc]

You are right but I'd strongly disagree with this.

NLUK, right there, in a nutshell.

[northernladuk]

A lot depends on his specific circumstances: if he has an in-demand skill and can find work in his preferred location then great, he can up and leave. But given that he's been at the client for 2.5 years seems to indicate that his expertise is either niche or best suited to big programmes of work of which there might not be many around, so he can't easily move around contracts.

You are right but I'd strongly disagree with this. The number of contractors that are in gigs because they are niche compared to the number of permatractors at clients that just don't rid of contractors will be tiny. I've been in at least two clients where the average time for a contractor must be upwards of 2 years +. First thing the fellow contractors say when you walk in is 'You'll be here for life'. Being given work on a case by case basis for 2.5 years defaults to a permatractor to me. I'd have to be told otherwise to agree. Possible yes, likely? I'm not convinced.

Hopefully he's already got insurance but additionally he needs to change his ways of working so that he is not seen as part and parcel. Or if ever challenged for IR35, he can agree as to which renewal he became part and parcel - for example it might have been after 12 months.

Quite but listening to that I'd say the horse has bolted and he's going to have a very difficult time to convince them.

I've always had long term engagements but I clearly remain a contractor, which has p1ssed off my current client no end - but it's what I need to do and they are putting up with me because they have to (for now).

Things you can do - for example:
- stay away from all company events unless representing your Co and having it pay for the event (or to attend).
- WFH, even better if you can have this written into your contract.
- zero day notice period.
- make sure you manage your working day
- etc
-(please add more as I have to take a long lunch now, because My Co allows me to work any hours I want to)

IMO all these should be done from day one. As soon as they slip you're done. Expectation has changed and it's very difficult to put it back. It becomes a game and the client gets increasingly frustrated. They are all minor flags as well, important to evidence I would say, but minor flags. If you are part and parcel it will become very clear to an investigation.

Sometimes it just happens and there is nothing you can do about it. You are there a long time, human nature will kick in and they will treat you like a colleague (most act like one so don't help themselves) and the gig slips inside IR35. It happens and you have to deal with it. Sitting there thinking you can save every gig and fix it is wrong. You can try play the game but you then become very high risk and you have to deal with that. No point pretending.

And just to be pedantic...

stay away from all company events unless representing your Co and having it pay for the event (or to attend). - No brainer...
- WFH, even better if you can have this written into your contract. - Pemies can work from home. This isn't a differentiator really.
- zero day notice period. - Notice periods aren't really much of a differentiator. I certainly wouldn't be altering mine to something I don't want just for IR35.
- make sure you manage your working day - Don't see why anyone wouldn't do this, permie or contractor
- etc - Lazy bugger

[ChimpMaster]

<snip>
Best approach IMO is to leave and get back to being a contractor.

You could of course just buy insurance and get on with it but I think that's part of the problem that's being foisted on those that try and it's not a right smart thing to do. You are a contractor, not a permatractor happy to tick boxes and ignore the risk.

A lot depends on his specific circumstances: if he has an in-demand skill and can find work in his preferred location then great, he can up and leave. But given that he's been at the client for 2.5 years seems to indicate that his expertise is either niche or best suited to big programmes of work of which there might not be many around, so he can't easily move around contracts.

Hopefully he's already got insurance but additionally he needs to change his ways of working so that he is not seen as part and parcel. Or if ever challenged for IR35, he can agree as to which renewal he became part and parcel - for example it might have been after 12 months.

I've always had long term engagements but I clearly remain a contractor, which has p1ssed off my current client no end - but it's what I need to do and they are putting up with me because they have to (for now).

Things you can do - for example:
- stay away from all company events unless representing your Co and having it pay for the event (or to attend).
- WFH, even better if you can have this written into your contract.
- zero day notice period.
- make sure you manage your working day
- etc
-(please add more as I have to take a long lunch now, because My Co allows me to work any hours I want to)