Reply to: IR35 sanity check....

[GhostofTarbera]

And I'm not sure you'll actually get many Inside IR35 workers at banks.

Many banks (and other clients) already (pre-pandemic) furloughed contractors over the festive period and those I know that moved to Umbrella or PAYE last April were furloughed in December 2020 (at least 2, but often 3 weeks).

I don't know anyone at any bank who officially moved Inside IR35 (ie. a determination was made) but if the do exist, i suspect they'd have been furloughed too.

GoT may know as he's got loads of friends at loads of banks.

Indeed, nobody I know in banking has had an inside IR35 assessment just blanket bans all round

From a few friends


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[northernladuk]

Clients have been "furloughing" contractors for years. It might be considered a mis-use of the word (as per the definition you posted above) but it's the word they use. This is across multiple industries.

Correct but worth educating contractors on exactly what is happening and what it isn't so people like the OP make incorrect assumptions they wouldn't make if they could see what it actually happening.

Ok going a long with the terms but not ok to not fully understand the situation.

[Paralytic]

We aren't furloughed, we just aren't offered work. A good example where the wrong word makes the situation more complex than it is.

Clients have been "furloughing" contractors for years. It might be considered a mis-use of the word (as per the definition you posted above) but it's the word they use. This is across multiple industries.

[northernladuk]

I appreciate all that, but that's a hard fight to win. Furloughing staff over Xmas seemed to be to a bit more straight forward. Or at least it did. I mean you wouldn't tell your permies (and in fact they didn't) 'you are not allowed to work for the next 2-3 weeks'.

Yes they do. Furlough comes from permanent world and is when they don't want perms to work but pay them. I mean, look where we are now, the whole covid furlough thing is exactly what you are saying they wouldn't do. It's happening en masse right now.

The definition is : to put (a worker) on furlough : to lay off (a worker) for usually a brief or temporary period.. You aren't a worker you are a supplier.

We aren't furloughed, we just aren't offered work. A good example where the wrong word makes the situation more complex than it is.

[Paralytic]

I suspect next christmas a lot of banks will be "furloughing" their now inside IR35 workers.

I wouldn't hold it out as the great escape plan you think it is.

And I'm not sure you'll actually get many Inside IR35 workers at banks.

Many banks (and other clients) already (pre-pandemic) furloughed contractors over the festive period and those I know that moved to Umbrella or PAYE last April were furloughed in December 2020 (at least 2, but often 3 weeks).

I don't know anyone at any bank who officially moved Inside IR35 (ie. a determination was made) but if the do exist, i suspect they'd have been furloughed too.

GoT may know as he's got loads of friends at loads of banks.

[eek]

While I wouldn't hold out much hope, it does in part show the ridiculousness of the legislation. If the majority of permies were told they're going to be obliged to take x weeks (typically at least 2) out of the y weeks holiday every year, thus effectively not allowing them the flexibility of planning for themselves, all hell really would break loose. Saying that though, none of these arguments matter a damn, because the way this government is going, with covid they've now got the perfect excuse to effectively turn everyone into a contractor anyway, all in the interests of creating jobs.

IR35 introduces the concept of the zero hour contract to a whole new world of people who thought it would never happen to them.

And yes the end result will (over time) be a lot more people on those sort of contracts - but hey I pointed this out years ago and no one beyond a couple of unions picked up the issue.

[ShandyDrinker]

I suspect next christmas a lot of banks will be "furloughing" their now inside IR35 workers.

I wouldn't hold it out as the great escape plan you think it is.

While I wouldn't hold out much hope, it does in part show the ridiculousness of the legislation. If the majority of permies were told they're going to be obliged to take x weeks (typically at least 2) out of the y weeks holiday every year, thus effectively not allowing them the flexibility of planning for themselves, all hell really would break loose. Saying that though, none of these arguments matter a damn, because the way this government is going, with covid they've now got the perfect excuse to effectively turn everyone into a contractor anyway, all in the interests of creating jobs.

[b0redom]

I suspect next christmas a lot of banks will be "furloughing" their now inside IR35 workers.

I wouldn't hold it out as the great escape plan you think it is.

I'm not holding out any hope tbh. I originally thought that the client I'm with was just blanket banning PSCs like the banks are. Out of the blue I get an IR35 determination (more than 6 months into the role), so thought I'd get an opinion.

TBH it'd have to have been a fairly solid 'yes this is a strong pointer' as this is the first inside gig I've done in 15 years of contracting, so I don't want to rock the boat unnecessarily.

[eek]

I appreciate all that, but that's a hard fight to win. Furloughing staff over Xmas seemed to be to a bit more straight forward. Or at least it did. I mean you wouldn't tell your permies (and in fact they didn't) 'you are not allowed to work for the next 2-3 weeks'.

I suspect next christmas a lot of banks will be "furloughing" their now inside IR35 workers.

I wouldn't hold it out as the great escape plan you think it is.

[b0redom]

Control with regards to IR35 status isn't about scheduling milestones, that's just setting out what's required operationally to get a project delivered on time and therefore (potentially) within budget.

It also isn't about attend site occasionally for team meetings. If you are working on something that both external and internal resources are working on then it's reasonable to expect both resources to communicate re progress, snags etc...

Control with regards to IR35 is concerned with the way in which you work and how you complete tasks assigned to you. If you use your own methods and processes and aren't told how to do what you do then that would be an indication of a lower risk of the role being "caught by" or "inside" IR35.

You can be told what to do and when to do it by (completely reasonable real world stuff) but as long as you're not told how to do it the Control shouldn't apply.

I appreciate all that, but that's a hard fight to win. Furloughing staff over Xmas seemed to be to a bit more straight forward. Or at least it did. I mean you wouldn't tell your permies (and in fact they didn't) 'you are not allowed to work for the next 2-3 weeks'.

[Patrick@Intouch]

You are subject to D&C as we expect you to work with your line management to schedule milestones etc, and may be required to attend site occasionally for team meetings. This is similar to flexible permies.

Control with regards to IR35 status isn't about scheduling milestones, that's just setting out what's required operationally to get a project delivered on time and therefore (potentially) within budget.

It also isn't about attend site occasionally for team meetings. If you are working on something that both external and internal resources are working on then it's reasonable to expect both resources to communicate re progress, snags etc...

Control with regards to IR35 is concerned with the way in which you work and how you complete tasks assigned to you. If you use your own methods and processes and aren't told how to do what you do then that would be an indication of a lower risk of the role being "caught by" or "inside" IR35.

You can be told what to do and when to do it by (completely reasonable real world stuff) but as long as you're not told how to do it the Control shouldn't apply.

[Patrick@Intouch]

Furlough is nothing to do with MoO. You take holidays which is the same thing as furlough in reverse. Its the way T&M contracts are. You get paid by the day. Sometimes you can't, work sometimes they don't want you to work.

Mutuality (or lack there of) is the obligation of offering extra work AFTER the piece of work you've agreed to do. While you are in contract with agreed SoW or whatever there are types of obligation in play. MoO is lack of obligation once the agreed obligation has ended.

MOO is complex and doesn't only refer to obligations outside of the current agreement. In order for MOO to exist there has to be obligation on the engaging party to offer work and on the engaged party to accept. This applies equally to within the current contract and after it.

It's helpful to think of this in terms of what it would look like in employment.

If you've finished work on a part of a wider project ahead of schedule and need to wait for someone else to finish what they are doing before you can start the next piece of work then your client "could" thank you for your efforts and tell you there's no more work until the next sprint starts. That shows that they have no obligation to find work for you or offer work to you.

If you were an employee in the same situation then they would of course find something else for you to do as they would still be paying you.

If that same client though offered you work to fill the gap but you turned it down as you were aware that you were going to be ahead of schedule and had something else lined up for a few days/weeks then that would show that you were under no obligation to accept work.

If you were an employee in the same situation then they would of course have to accept the work assigned.

Both of the above scenarios would be examples of how MOO doesn't exist within a contract.

[Lance]

they could declare you as inside even if none of the criteria fit.
As that may well suit their attitude to risk. If you're all inside they'll never be investigated and have to justify it.

[Scruff]

It's important to understand that IR35 legislation is taxation related. Furlough is an employment concept. Therein lies the inherent fault with the legislation, since it fails to align taxation and employment rights.

It'll not be long before an at-risk Barrister will take this on through the Courts, on behalf of an affected contractor/disguised employee, as a measure to attempt to align the rights with the legislation.

[b0redom]

Fair enough then.