Reply to: Anti-Bribery+ compulsory end-client trainings when working outside IR35

[northernladuk]

I mean I've been to loads of parties of places I don't even work - I don't think we need to worry about this!

Maybe but if you go knowing what you are doing then fair enough. Going and not realising why you shouldn't is a problem. It's probably the tip of the iceberg.

[Guy Incognito]

You don't go to the employees xmas parties even if you think you are one of the crowd and all matey with the perms.

I mean I've been to loads of parties of places I don't even work - I don't think we need to worry about this!

[PerfectStorm]

Once you've done a few of these you'll be able to answer them very quickly indeed.

[meanttobeworking]

Thanks everyone for the replies

[jamesbrown]

I'm not disagreeing with you, it's more a comment about how some on here will say that they could never take a permanent job because of annual performance reviews, and at the same time will go to their manager at the client and ask for a rate increase (or go through their agency to ask the manager) every 6 months.
In reality there are some "contractors" who claim they are different to permies, but their working practices are close to identical.

Absolutely, agree. Perhaps even the majority. I don't think CUK is very reflective of the wider contracting community in that regard (it is generally better here) and there are certainly quite a few here with that permie mindset. Indeed, it's hard to argue with the motivations of successive gov'ts w/r to targeting contractors, even if their methods and the resulting legislation has been quite poor.

[WTFH]

Of course, it may be different at small clients/start-ups where procurement and client managers can be the same people, but there are more general risks with that type of work, especially without a clear statement of work and clear acceptance criteria against which performance can be judged.

I'm not disagreeing with you, it's more a comment about how some on here will say that they could never take a permanent job because of annual performance reviews, and at the same time will go to their manager at the client and ask for a rate increase (or go through their agency to ask the manager) every 6 months.
In reality there are some "contractors" who claim they are different to permies, but their working practices are close to identical.

[jamesbrown]

Of course, it may be different at small clients/start-ups where procurement and client managers can be the same people, but there are more general risks with that type of work, especially without a clear statement of work and clear acceptance criteria against which performance can be judged.

[jamesbrown]

But if you get to the end of your 6 month contract and they offer you an extension, if you ask for an increase in rate and they ask you why they should give it to you, what's the difference between that and an employee performance review?

Performance reviews are necessary, inevitable. There is no ongoing business relationship that does not involve periodic reviews on both sides, it would be insane not to review/reflect on whether deliverables have been met and prices continue to be acceptable. However, they (should) proceed in a completely different way for contractors than employees and should be communicated through different channels (procurement vs. client managers). As a supplier, negotiations about pricing (should) happen through procurement, not with client managers, so the conversation you mention should never happen transparently. Rather, that is an internal conversation for the client (e.g., between procurement and project managers), after which they've formulated their opinion and whether they want to renew and what costing they could accept.

[WTFH]

I already knew the answer to the OP's question, and I'm not disputing anything, but can you help me understand this line of reasoning? Isn't the worrying part of 'everyone having to do' something that contractors are being lumped in with permies, and seen as the same? Which is why we often get this question? And why we often go to lengths to evidence we are treated differently?

To re-iterate, I fully get that being asked to complete this mandatory training (as I have just had to do with GDPR and cyber security) as an external provider isn't an IR35 issue, I'm just curious on this angle, because if "everyone had to" go to a mandatory Christmas party, or "everyone had to" have six monthly personal performance reviews, we'd not use this line of reasoning.

I'm sure it's me though

We go to lengths to evidence we are treated differently in the role we are doing.

If everyone on a site has to do mandatory training before being given access to the system, then that is not an issue
If everyone on a site is called together to a meeting about something or other that has happened on the site, that is not an issue
If the fire alarm goes off, a contractor does not say "this doesn't apply to me, if I leave the building then I am just like a permie"

The question you want to ask is "what makes me, in the role I am doing, different to a permanent employee?" If you struggle to define differences in your role, then you are starting to see an issue.

But, just to throw a spanner in your works:
A performance review held at the same time and in the same way as the employees is a definite no. But if you get to the end of your 6 month contract and they offer you an extension, if you ask for an increase in rate and they ask you why they should give it to you, what's the difference between that and an employee performance review?

[jamesbrown]

I already knew the answer to the OP's question, and I'm not disputing anything, but can you help me understand this line of reasoning? Isn't the worrying part of 'everyone having to do' something that contractors are being lumped in with permies, and seen as the same? Which is why we often get this question? And why we often go to lengths to evidence we are treated differently?

To re-iterate, I fully get that being asked to complete this mandatory training (as I have just had to do with GDPR and cyber security) as an external provider isn't an IR35 issue, I'm just curious on this angle, because if "everyone had to" go to a mandatory Christmas party, or "everyone had to" have six monthly personal performance reviews, we'd not use this line of reasoning.

I'm sure it's me though

Anything that is a basic necessity to allow the client to fulfil their statutory obligations or to allow the work to be completed safely cannot possibly speak to the working practices of individuals and IR35 is solely concerned with the working practices of individuals as they relate to a hypothetical contract with the end client. If the working practices look like employment, that is a problem, but anything like health and safety or basic IT security etc. cannot possibly discriminate working practices because everyone must complete them, regardless of the mode of engagement, and they are unrelated to how the work is performed, day-to-day. The problem arises when pointers that relate to working practices are similar across different types of engagement.

[malvolio]

I already knew the answer to the OP's question, and I'm not disputing anything, but can you help me understand this line of reasoning? Isn't the worrying part of 'everyone having to do' something that contractors are being lumped in with permies, and seen as the same? Which is why we often get this question? And why we often go to lengths to evidence we are treated differently?

To re-iterate, I fully get that being asked to complete this mandatory training (as I have just had to do with GDPR and cyber security) as an external provider isn't an IR35 issue, I'm just curious on this angle, because if "everyone had to" go to a mandatory Christmas party, or "everyone had to" have six monthly personal performance reviews, we'd not use this line of reasoning.

I'm sure it's me though

As I remember this line of argument came up in an early IR35 case (whose name I've forgotten - may have been the BAe one). Basically the contractor was sent home without pay when the system failed while the permie staff weren't and that was enough to prove a lack of mutuality (at least, as it was being interpreted them). But also in the judgement was the line about "it everyone is bound by xxx then it is irrelevant to the construction of the notional contract".

Case law and precedents have moved on a way since then, but the core logic still stands.

[meanttobeworking]

A long standing answer to such questions - If everyone has to do it, then it cannot be a differentiator for IR35.

I already knew the answer to the OP's question, and I'm not disputing anything, but can you help me understand this line of reasoning? Isn't the worrying part of 'everyone having to do' something that contractors are being lumped in with permies, and seen as the same? Which is why we often get this question? And why we often go to lengths to evidence we are treated differently?

To re-iterate, I fully get that being asked to complete this mandatory training (as I have just had to do with GDPR and cyber security) as an external provider isn't an IR35 issue, I'm just curious on this angle, because if "everyone had to" go to a mandatory Christmas party, or "everyone had to" have six monthly personal performance reviews, we'd not use this line of reasoning.

I'm sure it's me though

[northernladuk]

It's a trivial question but exposes a learning curve you need to address quickly

You are a business supplying a service for a client. By understanding what you are you can work out what the client is asking for and you it affects you.

All of these things are to protect the clients business. Some of it legislated and some fulfil risk and insurance needs. For example a client is responsible for health and saftey for everyone on site, not just employees. The same can be said for non tangible stuff that isn't training. The client is your customer, the permies around you are your customers. It's their kit, their data, their offices. You should always bear this in mind when working.

You need to know this and a good understanding of IR35. You can't stay outside of IR35 if you don't understand how to be a business in your own right. You don't go to the employees xmas parties even if you think you are one of the crowd and all matey with the perms. You don't jump when the client asks you to do something either. If it's not in your Statement of Work you decline to do extra stuff they ask you and so on.

A lot to learn but start off remembering you are a business and totally separate to the client and their business.

[DD2A]

Thank you, everyone :-) As said at the very beginning it may be a completely trivial question. I really appreciate your answer.

[jamesbrown]

Yes, because they are compulsory and are neutral w/r to your working practices.

Do some reading of the guides over there ------->

I appreciate this is your first gig outside IR35, but this is also a fairly rudimentary question and there's probably a lot more you don't know.