Reply to: Location of Performing Work - D&C?

[TheFaQQer]

I don't think that, given no other material change, that I can safely argue that I used to think that I could provide the services remotely, and subsequently to the email, that I suddenly decide that I need to be onsite 100% of the time.

I wouldn't buy that argument

Why not? As SueEllen says, we don't know your individual circumstances, or the job that you do. There are plenty of things that change on a contract, for example if a company is taken over, there may well be new people involved in the project, doing different things. In that case, depending on what you do, there are perfectly valid arguments that can be made for you needing to be on site to find out who they are, what they do, what the lay of the land is, etc., etc. The fact that you are making this decision at a time that happens to coincide with an email is mere chance, would be my argument.

and I'm a little surprised that it's being offered on here to be honest.

Not been round here much, have you??

Sounds like you want out of the contract, or a big increase and want to be able to blame it on IR35. If I were the manager, I've given you the new circumstances - you either start working on site like everyone else, or do one. End of.

[SueEllen]

Well, my Q was really to find out if people thought it was a D&C thing or not.

I don't think that, given no other material change, that I can safely argue that I used to think that I could provide the services remotely, and subsequently to the email, that I suddenly decide that I need to be onsite 100% of the time.

I wouldn't buy that argument, and I'm a little surprised that it's being offered on here to be honest.

If you know the answer then why post?

We are not in the situation as you are so we don't know the entire set up hence the various suggestions.

[Earlyflash1]

Well, my Q was really to find out if people thought it was a D&C thing or not.

I don't think that, given no other material change, that I can safely argue that I used to think that I could provide the services remotely, and subsequently to the email, that I suddenly decide that I need to be onsite 100% of the time.

I wouldn't buy that argument, and I'm a little surprised that it's being offered on here to be honest.

[TheFaQQer]

The difference is more like this:
If the client decides you need to work on site in order to be able to communicate with their staff, that's direction and control.
If you decide you need to work on site in order to be able to communicate with their staff, it isn't.

So essentially, it comes down to whether the OP wants to continue to work on the contract or not.

If they want to, then they determine themselves that they need to be on site to perform the work to the best of their abilities. Everyone wins.

If they don't want to, then they take the view that this is D&C, make a fuss about it, and risk getting canned from the project.

So - the real question is not whether this amounts to D&C, but whether the OP is looking for a way out of the contract / a big increase in their rate, and is using an argument of "it's my IR35 position" to support it. Since most managers haven't got a clue what IR35 is, I don't think it's a winner to try and argue for an increase just because you will be working on site rather than at home.

[Earlyflash1]

The difference is more like this:
If the client decides you need to work on site in order to be able to communicate with their staff, that's direction and control.
If you decide you need to work on site in order to be able to communicate with their staff, it isn't.

That's exactly how I see it. It's them exercising Control over my location of work, not me deciding how would be best to provide the services.

No response to the email as yet.

[thunderlizard]

If the client is asking you to work onsite because they feel that the work needs to be done where you can communicate effectively with their staff, then this may not fall into D&C. If they are asking you to work onsite so that they can tell you what to do and how to do it all day, then obivously it is.

The difference is more like this:
If the client decides you need to work on site in order to be able to communicate with their staff, that's direction and control.
If you decide you need to work on site in order to be able to communicate with their staff, it isn't.

[TheFaQQer]

I guess Mal is away...

Depending on the reason for asking you to work onsite, this may or may not impact your IR35 situation. For example, my current contract requires me to be working from the client site because it is a secure government location. This does not amount to direction and control, though.

If the client is asking you to work onsite because they feel that the work needs to be done where you can communicate effectively with their staff, then this may not fall into D&C. If they are asking you to work onsite so that they can tell you what to do and how to do it all day, then obivously it is.

Might be worth calling the PCG legal helpline / Qdos / someone who knows more than us lot on a forum (which isn't that hard to find, surely?)

[Earlyflash1]

You may have trouble in practice persuading them that you are not in breach of anything, that it is they who propose a change in your contract, which you are free not to agree to, leaving them with the question of what to do next, within a contract that you have not broken. I.e. they are likely to behave as if you are in material breach.

Especially if the new guy is accustomed to being The Boss.

Given I have 0 days notice from my side of the contract, that isn't too hard a question to answer...

Well, sending the email now, we'll see what happens.

[Platypus]

we'll part ways, and they can pay me the termination period and I'll have a nice time off.

Well if you're sure you can get another role, then do. Best of luck.

[expat]

Agree completely.

I have no intention of changing the way in which I work. If they want to pay additional sums to make me be in the office, great. If not, no problem, we'll part ways, and they can pay me the termination period and I'll have a nice time off.

You may have trouble in practice persuading them that you are not in breach of anything, that it is they who propose a change in your contract, which you are free not to agree to, leaving them with the question of what to do next, within a contract that you have not broken. I.e. they are likely to behave as if you are in material breach.

Especially if the new guy is accustomed to being The Boss.

[Earlyflash1]

If the client wants you to specifically work on-site I sounds like he wants to be in a position to be able to exert D&C. Maybe he isn't used to dealing with contractors?

This is almost certainly true. The incoming company is American and the new head of IT is also American (from New York)... I'm sure that the tax laws there are slightly different.

[Alan @ BroomeAffinity]

If the client wants you to specifically work on-site I sounds like he wants to be in a position to be able to exert D&C. Maybe he isn't used to dealing with contractors?

[Earlyflash1]

Agree completely.

I have no intention of changing the way in which I work. If they want to pay additional sums to make me be in the office, great. If not, no problem, we'll part ways, and they can pay me the termination period and I'll have a nice time off.

[ratewhore]

Looks like you and the new owners may not be able to do business.

WHS. This guy is going to be a PITA and he'll be wanting to integrate you every way he can.

Be interesting to see what they come back with in response to your email so please do keep us updated

[expat]

Interestingly, the email specifically mentions contractors:

"In normal circumstance, I do not ever expect contractors to work at home".

Otherwise, i'd have just ignored it completely.

Looks like you and the new owners may not be able to do business.

Obviously the choice, like the resulting income or lack of it, is completely yours. But if you have worked offsite, and then stop doing so because an email from the boss said that nobody is allowed to, I would love to see how anyone could argue that that is not D&C.