CEST based SDS - inaccurate and only run once for a number of cotnractors!?

[northernladuk]

Thats completely incorrect. There are contractor specific questions in CEST.

eg. Has the worker had a previous contract with your organisation
Has the worker done any self-employed work for a similar organisation in the last 12 months.

It's not totally incorrect. Many of the aspects are around how the organisation want to treat the role. If that is no substitution and want to offer other work beyond the scope of the engagement etc then the rest is pretty irrelevant, it's going to be inside. Nothing related to the contractor can make a difference. If their standard answers up to the points above make it inside then just rename the determination and send it out as the client has. It's a really poor way of running compared to individual run tests and leaves a lot of questions as we can see here but the determination is still sound.

[Fraidycat]

Not really. CEST should be run against the role, not the contractor.

Thats completely incorrect. There are contractor specific questions in CEST.

eg. Has the worker had a previous contract with your organisation
Has the worker done any self-employed work for a similar organisation in the last 12 months.

[northernladuk]

Unsprisingly a number of the contractors have spoken to one another about their SDS. And it appears the client has simply run CEST once, generated a PDF, then edited the PDF to replace names etc. The creation date/time is the same for everyone's SDS! Surely this constitutes blanket assessment, and is unlawful?

Not really. CEST should be run against the role, not the contractor. If you are all doing broadly the same role in the same way then a single determination is all that is required.

Would I be better to simply write to their appeals department saying "This is clearly not representative of my contract, but I am aware that there is nothing I could tell you that would cause you to give me an accurate determination"?

You'd look a bit of a fool doing that IMO. Looks more like a flounce than anything.

[jamesbrown]

You really should've left in Feb 2020. That was the point that the client considered you to be inside IR35. Having the client against you is a significant concern, even with some evidence to the contrary (e.g., a QDOS review). The reality is that the client knows (or should know) your working practices.

At this point, it's damage limitation. Indeed, you should leave ASAP and reject the SDS in writing - you might want to take some professional advice before you do this, however, as you'll need to word it carefully if you hope to retain as evidence of your rejection (e.g., I wouldn't say stuff like "I know you aren't going to change your mind" because this is childish phrasing. Instead, keep it simple and factual - outline your reasons for rejecting the SDS and inform them that you're invoking the relevant termination clause in your contract).

As you say, the client-led status disagreement process will go nowhere and their argument will likely be that all of the roles have similar WPs. However, the client is thick-as-mince for going down this route versus banning PSCs altogether.

[Lance]

"This is clearly not representative of my contract, but I am aware that there is nothing I could tell you that would cause you to give me an accurate determination"?

Many thanks for your thoughts

It might not be, but it will be representative of the new contract you now need.

I suggest you quit. All of you.
Especially as they now have documented evidence that you've been inside since at least Feb 2020.

[Paralytic]

Unsprisingly a number of the contractors have spoken to one another about their SDS. And it appears the client has simply run CEST once, generated a PDF, then edited the PDF to replace names etc. The creation date/time is the same for everyone's SDS! Surely this constitutes blanket assessment, and is unlawful?

Are these contractors performing the same/similar roles (eg, designers, devs and testers in the same team/project, under the same level of control), or completely and obviously different roles across multiple projects? There is no issue with clients doing blanket based role level determinations.

As to whether the SDS is valid due to reusing last years CEST, I don't believe there is any legal requirement for a client to use CEST (current or otherwise) in order produce an SDS, so I can't see how using last years one could be challenged. I think you need to accept that the client either believes (rightly or wrongly) that your working practices are inside IR35, or are simply not willing to take the risk/hassle of having to work with with outside IR35 roles.

Would I be better to simply write to their appeals department saying "This is clearly not representative of my contract, but I am aware that there is nothing I could tell you that would cause you to give me an accurate determination"?

I'd say Yes, but also consider adding a the bit where you given your notice to leave the contract/not renew post-April, unless you're happy to take the risk that HMRC will come calling for taxes due prior to April 2021.

[rensteruk]

Hi All,

I'm one of a large number (00s, if not 000s) of contractors for the same client. A few days ago I finally received my CEST based SDS. Unsurprisingly, it was inaccurate, and ISIR35 (QDOS reviewed it some time ago, and it's OSIR35)

What did surprise me a bit, was it was simply the one they had produced in Feb 2020 before the deferral - they haven't even bothered to re-run CEST - which AIUI has been updated in the past year. Is that still a valid SDS? The terms of my contract haven't changed, BUT there's at least 1 question for which their answer 13 months ago was correct and now incorrect (ironically one that would make their IS determination stronger!). Do such SDS have a limited 'lifetime'? Perhaps it doesn't matter that much as the client has given obviously inaccurate answers to all of us, in order to ensure an IS determination.

However, beyond just churning out an old SDS, and arguably the bigger question....

Unsprisingly a number of the contractors have spoken to one another about their SDS. And it appears the client has simply run CEST once, generated a PDF, then edited the PDF to replace names etc. The creation date/time is the same for everyone's SDS! Surely this constitutes blanket assessment, and is unlawful?

Ultimately it seems to me that for many contractors - not just with this client - the benefit of appealing is almost zero. Such clients are not going to change anyone's status. However, I feel it's important to at least document that we clearly disagree with it. My feeling is that if I provided them with a list of points that were wrong, the best I could hope for is they'd change anything 'cosmetic' - and refuse on the rest such that they still generated the same outcome - weakening my argument in case of investigation. Would I be better to simply write to their appeals department saying "This is clearly not representative of my contract, but I am aware that there is nothing I could tell you that would cause you to give me an accurate determination"?

Many thanks for your thoughts