Reply to: IR35 direction/control for a software developer

[centurian]

Maybe it's better if it is not appealed then - as that would set precedent if it was lost.

[malvolio]

But being told what to work on - appears to trump all of the other aspects of control that we are discussing on this thread.

That's why it was a partial loss. Even after 2004, he still maintained many of the other elements of control we are talking about here. No-one ever told him how to do the work, even post 2004. But that didn't help him - he was still nailed on "control".

The point is - fine to follow the advice on these points in this thread, but it may be useless unless you also address the wider issue of control as rendered in this judgement.

Thre's lots wrong with that judgement, to be honest - <snip> - but luckily it hasn't set any precedents...

[centurian]

It was a partial loss. He was not under control before 2004. After 2004 he became a regular joe turning up to work being told what to work on.

But being told what to work on - appears to trump all of the other aspects of control that we are discussing on this thread.

That's why it was a partial loss. Even after 2004, he still maintained many of the other elements of control we are talking about here. No-one ever told him how to do the work, even post 2004. But that didn't help him - he was still nailed on "control".

The point is - fine to follow the advice on these points in this thread, but it may be useless unless you also address the wider issue of control as rendered in this judgement.

[VectraMan]

The thing is though, an employed and contracted developer might both work in the same way, assigned bugs/tickets and going through the same process to make changes and get them tested/documented/signed off. As you say, it's a requirement of that particular role, but it still means your day-to-day activities might look very similar to the permies.

All part of the joke of IR35?

Now I'm a permie again, and nothing's really any different to how I worked as a contractor. I'm not told "how" to do something; in fact I wouldn't have got the job if I didn't have a lot of my own experience and expertise to bring to the role. I discuss with the management and my colleagues what direction the work should take, and which projects, or part-projects I should take on, and although yes I do have to get a card signed to take time off, in reality they're not going to refuse as long as I'm reasonably sensitive to the needs of my employer (it was very rare I took time off mid contract anyway).

[prozak]

It's also worth understanding what is meant by "control" - check out the new Allianz ruling

http://www.financeandtaxtribunals.go...76/TC01603.pdf

Selected snippets





So even though they accepted that Allianz did not have detailed control over how he was doing things, this didn't help his case - he still lost.

What nailed him was the ability for Allianz to control which project he was working on.

Probably still worth taking some of the precautions described, but it looks like the impact of such measures is reduced.

No.

It was a partial loss. He was not under control before 2004. After 2004 he became a regular joe turning up to work being told what to work on.

[centurian]

It's also worth understanding what is meant by "control" - check out the new Allianz ruling

http://www.financeandtaxtribunals.go...76/TC01603.pdf

Selected snippets

But whilst Mr. Spencer was undertaking the project for which he was specifically engaged, we
consider that he was using his expertise in a manner that could not be controlled in the
sense of “how” he did his work. The control was therefore limited.

By breaking the link with projects, and indicating that Mr. Spencer would work generally
within the organization, we consider that from 2004 onwards, there was more reality
to control.

So even though they accepted that Allianz did not have detailed control over how he was doing things, this didn't help his case - he still lost.

What nailed him was the ability for Allianz to control which project he was working on.

Probably still worth taking some of the precautions described, but it looks like the impact of such measures is reduced.

[SueEllen]

Another example that was given some time back was working a support rota. If the role dictates that support must be provided 24 hours and you take shift patterns, i think it was agreed this was a necessity of the role. What are the opinions on this scenario? Has it ever been tested?

As someone doing support you take tasks (or whatever you call it) during your shift.

How you do those tasks will be up to you as long as you meet any time requirements in dealing with them.

I haven't met anyone doing support in the UK apart from people learning the role who are told exactly what to do. In most jobs in the UK where you deal with people there is a bit of autonomy, which is one of the reasons why customer service is so awful.

This reminds me of the episode of the simpsons when Bart was asking his Sunday school teacher about what would happen when he got to heaven...

"If I lose a leg on earth, will I get it back in heaven?"
"Will my dog be there who I love, even though he has been bad and has gone to hell?"

Animals apparently don't have souls so you won't see them in heaven.

[JoJoGabor]

Another example that was given some time back was working a support rota. If the role dictates that support must be provided 24 hours and you take shift patterns, i think it was agreed this was a necessity of the role. What are the opinions on this scenario? Has it ever been tested?

This reminds me of the episode of the simpsons when Bart was asking his Sunday school teacher about what would happen when he got to heaven...

"If I lose a leg on earth, will I get it back in heaven?"
"Will my dog be there who I love, even though he has been bad and has gone to hell?"

[prozak]

Well for comparison, the statements would be like

"I am not available for 2 days next week. Having seen the project schedule, I believe it's okay. Do let me know if something urgent crops up." as compared to "Hi, Is it okay to have a couple of days off next week?"

"I am working from home tomorrow. I can be reached on phone, email or Skype. Please let me know if I am required on premises for an urgent meeting, and I will be available." as compared to "Hi, is it okay if I work from home tomorrow, and if there are no scheduled meeting?"

The first statement is more authoritative, and asserts that you are in control of your services. Of course, you have business to do, and that would mean that you will have to suit your arrangements as per the client requirements, but then you make sure that your arrangements are not a hinderence for project or other client requirement.

By the way, these statements are just a general idea of how the D&C can be determined in broad sense. If you don't care about the client preferences, then it is professional suicide, imho.

HTH.
Dave.

Agree.

I've never asked for holidays.

I've always just politely informed them of when I am taking them.

This shouldn't impact your role because you should know understand the project you are working on and determine when an appropriate time might be.

[rd409]

If you are in the middle of a project delivery, you can't just say "Oh, by the way, I won't be in for 2 weeks.". you are giving your client ammo to bin you for someone else who is more readily available. I don't think it is unreasonable for the client to have some say on when you are available and whether you can or can't work from home

Well for comparison, the statements would be like

"I am not available for 2 days next week. Having seen the project schedule, I believe it's okay. Do let me know if something urgent crops up." as compared to "Hi, Is it okay to have a couple of days off next week?"

"I am working from home tomorrow. I can be reached on phone, email or Skype. Please let me know if I am required on premises for an urgent meeting, and I will be available." as compared to "Hi, is it okay if I work from home tomorrow, and if there are no scheduled meeting?"

The first statement is more authoritative, and asserts that you are in control of your services. Of course, you have business to do, and that would mean that you will have to suit your arrangements as per the client requirements, but then you make sure that your arrangements are not a hinderence for project or other client requirement.

By the way, these statements are just a general idea of how the D&C can be determined in broad sense. If you don't care about the client preferences, then it is professional suicide, imho.

HTH.
Dave.

[pmeswani]

The D&C can be determined by whether you ask for work from home or inform the client that you would be working from home. Whether you inform your client that you would not be available for a particular time period, or you ask for time off. Whether you can walk in and out of work according to what you believe is good for you business, or you ask for permission for leaving early. Whether you can use your own set of tools to perform a task if you find it necessary, or you will have to only work with the provided set of tools.

Although there are only subtle and minute difference between the way you approach the day to day working practices, but in essence, if you are given the task, and you can perform it completely on your own terms without anyone questioning where, when and how you do it; then you can say you are an independent entity. There are different ways the task can be assigned, so this is out of scope if you make sure the main concept of D&C is maintained.

HTH.
Dave.

If you are in the middle of a project delivery, you can't just say "Oh, by the way, I won't be in for 2 weeks.". you are giving your client ammo to bin you for someone else who is more readily available. I don't think it is unreasonable for the client to have some say on when you are available and whether you can or can't work from home

[rd409]

I was thinking about this in my other thread but it seemed worthy of its own discussion...

For IR35 we want to avoid direction and control - we choose what we do, when and how we do it. However as a software developer you are typically required to work on specific tasks (issued through a bug-tracker most often). Being assigned tasks and doing them in roughly the order the client wants is business as usual for a software developer - picking the tasks you want to work on is not most helpful to your client.

So - does this imply an element of control or does it come under a common sense heading, that you need to provide a professional service doing what the client needs doing?

The D&C can be determined by whether you ask for work from home or inform the client that you would be working from home. Whether you inform your client that you would not be available for a particular time period, or you ask for time off. Whether you can walk in and out of work according to what you believe is good for you business, or you ask for permission for leaving early. Whether you can use your own set of tools to perform a task if you find it necessary, or you will have to only work with the provided set of tools.

Although there are only subtle and minute difference between the way you approach the day to day working practices, but in essence, if you are given the task, and you can perform it completely on your own terms without anyone questioning where, when and how you do it; then you can say you are an independent entity. There are different ways the task can be assigned, so this is out of scope if you make sure the main concept of D&C is maintained.

HTH.
Dave.

[malvolio]

If everyone has to do things a given way, then it doesn't distinguish between permie and contactor so it's neutral as far as IR35 is concerned. You're actually being asked to do something, but not given hard and fast rules about how you get to the end result. So where's the D&C anyway?

[d000hg]

I don't see this is D&C, I see this as part for the role. They are the developing software, this has a set of standard processes that need carrying out in some form of order whatever client they have. On top of this other ad-hoc work needs doing to allow them to continue with the work they do so that needs doing.

The thing is though, an employed and contracted developer might both work in the same way, assigned bugs/tickets and going through the same process to make changes and get them tested/documented/signed off. As you say, it's a requirement of that particular role, but it still means your day-to-day activities might look very similar to the permies.

All part of the joke of IR35?

[pmeswani]

I always thought software developers were automatically IR35 caught.

They're just glorified typists after all......

I'm a trained typist... where do I sign up?