Reply to: Support and IR35

[malvolio]

There's nothing to stop you having a contract that says you will fix faults as they arise, in line with business priorities and the agreed SLA between the two companies - i.e. the "fix it now, fit it today, fix it this week" set that all support teams work to, including the 3rd party support groups I use. You are not then under their control, merely adhering to a contractual agreement.

[Sockpuppet]

I don't agree. This is what you hope is the case, but AIUI there is no case law that says so.

ISTM that simply sitting at a desk and being told "there's a fault, diagnose and fix it now" could be enough D&C to create an employee relationship (and judges have said so in summing up). In order for there to be no D&C you have to have the right to say, "no, I'm not going to do that task today".

Now, I know that people have managed to convince IR people that the above passes the test, but no-one has convinced a judge.

Agreed, was trying to think of a example as I don't work in IT. All the stuff I do is project based so its upto me to schedule stuff as I feel fit (ovbiously if something urgent comes up for tommorrow I can't do it in 3 days time).

For me I usually get some work and a deadlines then told to trot off and come back when its done. Fairly non-IR35 as the timescales are in the order of months and they don't tell me what to do day to day.

I think its also been agreed that there are a lot of people out there that would be classified as non-IR35 caught yet they are employees.

[hgllgh]

If I ask my client to bunch up support requests into related work packages would that help? I am then not a bum on seat fix this issue fix that issue as they arise but a supplier of services fixing work packages that can be estimated for time to be completed ?

Anyone?

[s2budd]

No, no, no you have it all wrong

After finishing your current project, you have chose to take another project that is to maintain and improve a different system in order to remove the current performance and procedural issues and thus provide a better system.
The end client would also like you to document the current system and provide consultancy on improvements.

[Fred Bloggs]

Well yes, not working does rather avoid the need to worry about IR35. Or you could learn how it works and what the criteria are, of course - but where's the fun in that

If a client asks you to move to another part of the organisation on to another role after you've finished an outside IR35 project and when you move there you find out the client wants a "bum on seater" to run around after him doing his day to day work for him you haven't much to negotiate over! That's what happened to me. 7 months outside of IR35 on a project and 6 weeks inside IR35 as a day to day "bum on seater" according to my risk assessment criteria given to me QDOS in order to measure my IR35 risk. I had to move and I'm now in another project firmly outside IR35. In my experience a great many (nearly all?) managers in the world of permie-dom have little idea of the sort of roles that an outside IR35 contractor can do. And why should they worry or be bothered, the tax liability/hassle is mine not his?

[Fred Bloggs]

Well, yes if you walked away and straight into another contract.

That is exactly what I did. It took me 6 weeks total to realise what was happening in the role, tell the client I couldn't do and to find a new project. If push comes to shove I'll declare IR35 caught for 6 weeks and lob the entire earnings into a SIPP.

[hgllgh]

I don't agree. This is what you hope is the case, but AIUI there is no case law that says so.

ISTM that simply sitting at a desk and being told "there's a fault, diagnose and fix it now" could be enough D&C to create an employee relationship (and judges have said so in summing up). In order for there to be no D&C you have to have the right to say, "no, I'm not going to do that task today".

Consider the position of the NHS consultant. Does anybody tell him what to do when he sees a patient? (Nope, he uses his skill and judgment to do this)?
Does anybody tell him which patients to see? (Nope, because as well as being a skilled professional he is also the manager of a team of more junior doctors and he gets to pick which ones he sees and which ones his juniors see).

Is he an employee when wearing his NHS hat? Yes he most certainly is.

Now, I know that people have managed to convince IR people that the above passes the test, but no-one has convinced a judge.

tim

so there are two D&C issues:-

scheduling of support requests which you say is best done by the contractor, or at least having the right to say no to a support request in favor of another.
(Again, something that an employee would have the right to do but I see your point.)

the other is the level of specification on what/how to solve a problem. In the computer fix/harddrive scenario outlined in this thread a contractor would still need to draw on his skills and experience to change the harddrive so the only difference between the two scenarios is a greater level of specification of the problem. In the real world a contractor in a support role is going to get both types of request. So I don't see a real difference with regards to employment status although i see the point you are making

[Epiphone]

I'd take the money, get B&C to check the contract if it changes and worry about IR35 as and when the need arose.

Don't let the taxman's tail wag the dog.

[tim123]

No. In a very simple term.

Non IR35: Computer has issues...fix it.

IR35: Computer has issues, hard drive failed....replace it.

I don't agree. This is what you hope is the case, but AIUI there is no case law that says so.

ISTM that simply sitting at a desk and being told "there's a fault, diagnose and fix it now" could be enough D&C to create an employee relationship (and judges have said so in summing up). In order for there to be no D&C you have to have the right to say, "no, I'm not going to do that task today".

Consider the position of the NHS consultant. Does anybody tell him what to do when he sees a patient? (Nope, he uses his skill and judgment to do this)?
Does anybody tell him which patients to see? (Nope, because as well as being a skilled professional he is also the manager of a team of more junior doctors and he gets to pick which ones he sees and which ones his juniors see).

Is he an employee when wearing his NHS hat? Yes he most certainly is.

Now, I know that people have managed to convince IR people that the above passes the test, but no-one has convinced a judge.

tim

[KevinS]

No. In a very simple term.

Non IR35: Computer has issues...fix it.

IR35: Computer has issues, hard drive failed....replace it.

You've lost me there ???

If a bunch of issues can be packaged up and classed as development work would that help?

SP means that it is non IR35 if there is no D&C (direction & control).. So, in the first instance, you are informed of an issue - it is up to you to use your skills to fix it. In the second instance (IR35) you are informed the machine has a HDD problem and it must be replace (you are directed on what to do)..

[hgllgh]

No. In a very simple term.

Non IR35: Computer has issues...fix it.

IR35: Computer has issues, hard drive failed....replace it.

You've lost me there ???

If a bunch of issues can be packaged up and classed as development work would that help?

[Jubber]

Same happened to me a while ago. I told the client I couldn't integrate and do "day to day" issues. I ended up walking away rather than run the risk. It's the only way to go really to even stand a chance of being outside IR35.

Well, yes if you walked away and straight into another contract. If I had nothing else to do I would bank the money and then discuss with Her Majesty's if and when the need arose.

I am of the opinion that work is work and money in the bank, however it is taxed, is much better than no money in the bank.

J

[malvolio]

Same happened to me a while ago. I told the client I couldn't integrate and do "day to day" issues. I ended up walking away rather than run the risk. It's the only way to go really to even stand a chance of being outside IR35.

Well yes, not working does rather avoid the need to worry about IR35. Or you could learn how it works and what the criteria are, of course - but where's the fun in that

[Fred Bloggs]

Same happened to me a while ago. I told the client I couldn't integrate and do "day to day" issues. I ended up walking away rather than run the risk. It's the only way to go really to even stand a chance of being outside IR35.

[Sockpuppet]

No. In a very simple term.

Non IR35: Computer has issues...fix it.

IR35: Computer has issues, hard drive failed....replace it.