Originally posted by FIERCE TANK BATTLE
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Previously on "CEST Tool - Does your client have the right to decide how the work is done?"
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Originally posted by jamesbrown View PostI would call that part of the specification, part of the “what”. It could be (ideally, would be) explicitly within the contractual terms. To my mind, it’s akin to security requirements and wouldn’t distinguish between employment and self-employment, rather have a neutral status. However, it is arguable and is certainly not a positive distinction between a supplier and an employee. If the client gives you a detailed process to follow or supervises the implementation, that is a problem. Otherwise, you want maximum autonomy and points of distinction between you, as a supplier, and employees of the same client.
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Originally posted by jamesbrown View PostI would call that part of the specification, part of the “what”. It could be (ideally, would be) explicitly within the contractual terms. To my mind, it’s akin to security requirements and wouldn’t distinguish between employment and self-employment, rather have a neutral status. However, it is arguable and is certainly not a positive distinction between a supplier and an employee. If the client gives you a detailed process to follow or supervises the implementation, that is a problem. Otherwise, you want maximum autonomy and points of distinction between you, as a supplier, and employees of the same client.
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Originally posted by JohntheBike View Postwhat about this scenario -
the platform you work on has different products automatically bundled in, some of which your client doesn't use. You have experience of some of those products that your client doesn't use and you want to use some of those products to provide the solution your client wants. However, the client forbids you using them, because they are not part of the client's standards.
Any thoughts?
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Originally posted by jamesbrown View PostI see agile as more about organizing the "what" than controlling the "how". You don't get a set of instructions for how to implement solutions. I suppose you could argue it's "how" at a very abstract level, i.e. "how we do business here", but I don't think that's the test; the test is about how a piece of work is completed.
the platform you work on has different products automatically bundled in, some of which your client doesn't use. You have experience of some of those products that your client doesn't use and you want to use some of those products to provide the solution your client wants. However, the client forbids you using them, because they are not part of the client's standards.
Any thoughts?
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Originally posted by FIERCE TANK BATTLE View PostIt's dumb because my client said "Oh, what if we are an Agile company and we want you to do Agile? We're obviously deciding how the work is done."
By that logic it's *impossible* for the end client not to decide to some extent how the work is done.
"I need you to install these radiators but install the downstairs ones first because the electrician hasn't finished upstairs yet" = must be a disguised employee
True or not, who knows. It's what the client figured when filling out the tool. Even if HMRC can't win, they don't need to if the Powers That Be higher up in the company say "CEST says no" and force you inside.
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It's dumb because my client said "Oh, what if we are an Agile company and we want you to do Agile? We're obviously deciding how the work is done."
By that logic it's *impossible* for the end client not to decide to some extent how the work is done.
"I need you to install these radiators but install the downstairs ones first because the electrician hasn't finished upstairs yet" = must be a disguised employee
True or not, who knows. It's what the client figured when filling out the tool. Even if HMRC can't win, they don't need to if the Powers That Be higher up in the company say "CEST says no" and force you inside.
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Originally posted by vwdan View PostSounds a bit like they're having their cake and eating it there, but I'll be putting "No" based on the fact they *could* have one of their permies shadow me or something if they wanted.
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Originally posted by jamesbrown View PostCase law tends to downplay control when the contractor is doing specialist work and the client has insufficient knowledge to control the “how”, although other factors may be positive in that case (not BAU). But if the client does have the capacity to control the how, then it shouldn’t matter whether the work is highly skilled or not.
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Case law tends to downplay control when the contractor is doing specialist work and the client has insufficient knowledge to control the “how”, although other factors may be positive in that case (not BAU). But if the client does have the capacity to control the how, then it shouldn’t matter whether the work is highly skilled or not.
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CEST Tool - Does your client have the right to decide how the work is done?
So, it's IR35 time with current client so I thought I'd better pay a bit more attention to the CEST tool.
One of the questions asked is:
Does your client have the right to decide how the work is done?This can include your client instructing, guiding or advising the way the task should be completed.
This is not relevant if it is highly skilled work. For example, an airline pilot.
ANSWERS:
x Yes
x No, you solely decide
X No, you and your client agree together
x Not relevant, it is highly skilled work
I don't even know what I'm asking here - does anybody know any legislation or case law it refers to? The HMRC manual is suspiciously devoid of real detail:
ESM0527 - Employment Status Manual - HMRC internal manual - GOV.UK
Though I have to say, having had a play with the tool it certainly doesn't seem it's a silver bullet answer.Tags: None
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