IR35 assesment

[WordIsBond]

Let's start with the big question -- is the role legitimately outside?

If so, it really won't matter much to you whether the determination is on the flakiest basis imaginable or not. If it's outside, it's outside, and if the client gives you an outside determination on an outside role, it's not going to be a problem.

Who cares whether the client doesn't understand or is being stupid? The liability for that is theirs, not yours. And you're at no risk if it's outside, anyway.

It's not the contractor's job to do what client legal departments should be doing. If they are going to give you an outside determination, keep your head down and keep invoicing.

But also don't be surprised if come late March it all changes, either.

[ukltdcon]

Thinking about it I doubt anyone would insure you working on a gig without a proper outside determination from the client anyway. Why would they put themselves at risk in a situation where the client hasn't followed the law?

Yes the insurance company they are using have their own assesment tool, but it has win-win disclaimer that is along the lines of in the event of an un-successful outcome (IR35 investigation) the liability is limited to a punitive amount. which makes it completely pointless.

[LondonManc]

What do you mean a 'proper' outside determination? QDOS don't require this.

Review of working practices and contract, as determined by someone like, erm, QDOS....

[DevUK]

Thinking about it I doubt anyone would insure you working on a gig without a proper outside determination from the client anyway. Why would they put themselves at risk in a situation where the client hasn't followed the law?

What do you mean a 'proper' outside determination? QDOS don't require this.

[northernladuk]

Thinking about it I doubt anyone would insure you working on a gig without a proper outside determination from the client anyway. Why would they put themselves at risk in a situation where the client hasn't followed the law?

[jamesbrown]

If that goes ahead, your client may, at some future date, learn a very expensive lesson.

Contracts can say whatever. Legislation comes first. In the first instance, ClientCo is going to have to cough up for all tax, penalties and interest. In the second instance, they may be able to recover some of that from you or they may not. I think it more likely not and I think it quite likely that you could instead try to recover employment and pension rights from ClientCo.

Insurance sounds suspect too.

There's a reason why literally no large client co with a compliance team and half a brain is going with that approach.

[ukltdcon]

To be fair to them they have gone through the assessment in detail, and current contract pre April I had reviewed by qdos who didn't flag anything, it has all the substition clauses, moo etc..

They also arranging everything to end and invoices be paid early before April, in the contractors benefit.

That said it stills seems like a huge liability, that I doubt I can insure against I would rather have a role that is simply outside without all these legal what if's.

[Lance]

The company I contract at are implementing this solution to IR35 what I read from it is basically if you want to be outside then do so at your own risk.

- Contract assessed as outside IR35
- Contractor requirement to have a policy with insurance provider for x amount of IR35 cover (insurance company have disclaimer stating they may not pay out based on the answers I provided to IR35 related questions)
- Contractor signs separate indemnity policy agreeing to re-imburse the company for all tax, NI, penalties and interest should there be an enquiry against my contract and that the insurance fails to pay out.

Is that policy even legal, perhaps it is? Also if I agreed to above looks like I would need further insurance or a 100% certainty that I am outside.

It’s perfectly legal. Whether it’s enforceable is a different question.

I’d be inclined to tell them to piss off. How can they think it’s reasonable for them to make an assessment they’re responsible for but shift the liability of getting it wrong to the contractor.

Another dereliction of duty from a tulipty client who wants the cake and all the cream and to eat it out.

[northernladuk]

With an attitude like that I'd wonder if they really understand how they engage contractors and if there isn't an IR35 problem already. No mention of substitution or statements of work and other aspects which used to be the minimum in the old days, let alone the new. Maybe just a wild assumption but that set up sounds very slap dash to me.

[ukltdcon]

It would be a post April contract yes, my thoughts as well direct opposite of what the legislation is supposed to change

[ladymuck]

That feels like it is contrary to the draft legislation.

This is definitely for a post-April contract, not now?

[ukltdcon]

The company I contract at are implementing this solution to IR35 what I read from it is basically if you want to be outside then do so at your own risk.

- Contract assessed as outside IR35
- Contractor requirement to have a policy with insurance provider for x amount of IR35 cover (insurance company have disclaimer stating they may not pay out based on the answers I provided to IR35 related questions)
- Contractor signs separate indemnity policy agreeing to re-imburse the company for all tax, NI, penalties and interest should there be an enquiry against my contract and that the insurance fails to pay out.

Is that policy even legal, perhaps it is? Also if I agreed to above looks like I would need further insurance or a 100% certainty that I am outside.