Reply to: **termination with no notice** clauses**

[SueEllen]

But IR35 refers to the taxation of the individual and whether or not they are a disguised employee and therefore not permitted to draw dividends rather than receive payment through PAYE. The 'intermediary', following the introduction of the MSC legislation, can only be a single person Ltd Co. When IR35 was introduced in 1999 managed service companies that paid in dividends were still permitted

From the HMRC link the "single person limited company" part is incorrect. This allows them to go after any family business where there is only one client.

[TheFaQQer]

IR35 applies to workers provided through intermediaries and could equally apply to big companies as one man bands. There is nothing in the Intermediaries Legislation that refers to company size. The fact is that payment terms on termination of contract have nothing to do with IR35: MOO and payment in lieu of contractual notice are two entirely different things.

Boo

IIRC, IR35 only applies in companies where the main worker holds 20% of the shares or more. I'd have to look it up, but it doesn't apply to big companies.

Edit (from HMRC)

Does the company or partnership I work through meet the IR35 qualifying conditions?

If your services are supplied through a company, and the company does not meet the definition of a Managed Service Company, the IR35 rules apply if:

• you (or your family*) control more than 5 per cent of the ordinary share capital of the company, or
• you (or your family*) are entitled to receive more than 5 per cent of any dividends from the company, or
• you receive, or could receive, payments or benefits from the company which are not salary, but could reasonably be taken to represent payment for the services you provide to clients.

If your services are supplied through a partnership of which you are a partner, and the partnership does not meet the definition of a Managed Service Company, The IR35 rules apply if:

• you (or your family*) are entitled to 60 per cent or more of the profits of the partnership, or
• all or most of the partnership's income comes from providing services to a single client, or
• the profit sharing arrangements in the partnership are designed to ensure that you receive an amount based on the payments received for your services to clients.

[LisaContractorUmbrella]

IR35 applies to workers provided through intermediaries and could equally apply to big companies as one man bands. There is nothing in the Intermediaries Legislation that refers to company size. The fact is that payment terms on termination of contract have nothing to do with IR35: MOO and payment in lieu of contractual notice are two entirely different things.

Boo

But IR35 refers to the taxation of the individual and whether or not they are a disguised employee and therefore not permitted to draw dividends rather than receive payment through PAYE. The 'intermediary', following the introduction of the MSC legislation, can only be a single person Ltd Co. When IR35 was introduced in 1999 managed service companies that paid in dividends were still permitted

[Boo]

That's different though. IR35 applies to an individual contractor working as a disguised employee for the purposes of a specific contract.

IR35 applies to workers provided through intermediaries and could equally apply to big companies as one man bands. There is nothing in the Intermediaries Legislation that refers to company size. The fact is that payment terms on termination of contract have nothing to do with IR35: MOO and payment in lieu of contractual notice are two entirely different things.

Boo

[Podgy]

In KittyCat's case there would be no implications to IR35 - the record of KittyCat assignments would show that - & I agree it is a separate issue for HMRC (in this case the assignment had been in force for 4.5 months - it was the 1st assignment with the particular client).

The regulations provide that the notice period must be stated - there is nothing to stop an agency stating a notice period of Nil and then if they had done what they did - fine, no case - as assignment would have been accepted on that basis.

Once stated, the notice period cannot be changed without clear notification & agreement by the worker - so technically if there is a notice period and say 5 weeks after starting the contract you are expressly asked to sign that away to nil - then also fine, no case - if the worker agrees (if not the notice period remains as in the original contract).

It seems pretty clear how this agency operated - they did what they had to do under the regulations & because it was in their & their clients interest (4 week notice period) - then tried to 'break' the regulation with small print when it suited them or the client. The regulations prohibit this.

I presume the agency did not want to take the risk of losing as also they can be reported under the regulations for investigation - prob opening up a whole can of worms and the risk of fines, prosecution etc

[LisaContractorUmbrella]

If it's any help this link Detailed guide to determining status: continuous contract of service or individual engagements? shows the legal cases which HMR&C refers to when determining if MOO exists and also if a contract is for or of service

HTH

[Wanderer]

Dunno, but a contract with a notice of termination is absolutely not an IR35 pointer. There are plenty of commercial firms who are chained to contracts which require them to pony up in full if the contract is cancelled. No IR35 implications for BAe when those aircraft carriers were being looked at, eh ?

I agree. My view is that the contract by it's very definition must create a mutuality of obligation on both sides, how could you legally have a contract with no obligations in it? However, in contrast to a permie job the MOO of our type of contract does not extend beyond the length of the contract or the notice period and this is the argument you present in an IR35 defence.

Others disagree and say that no outside IR35 contract has any MOO at all and effectively there is no notice period on either side. I really can't understand why there actually a notice period the contract if this is indeed true.

But it's a moot point, as kittycat proved...

[jamesbrown]

Dunno, but a contract with a notice of termination is absolutely not an IR35 pointer. There are plenty of commercial firms who are chained to contracts which require them to pony up in full if the contract is cancelled. No IR35 implications for BAe when those aircraft carriers were being looked at, eh ?

Boo2

That's different though. IR35 applies to an individual contractor working as a disguised employee for the purposes of a specific contract.

I agree with Wanderer's assessment of this one. The only thing that could be settled is whether it was a real case.

[Boo]

Is there really much further that we can go on this one?

Dunno, but a contract with a notice of termination is absolutely not an IR35 pointer. There are plenty of commercial firms who are chained to contracts which require them to pony up in full if the contract is cancelled. No IR35 implications for BAe when those aircraft carriers were being looked at, eh ?

Boo2

[Wanderer]

You gonna give us a bit of background about who this was from and it's place in the process? I just see copy/pasted text, not evidence.

This debate will never be settled. The difficult thing is that very few cases of this type will ever come to court and be laid bare so it's not so easy to observe the full facts of the case and we are almost certainly not aware of the full details here... If a contractor drops a case then they quietly disappear with their tail between their legs. If the agency settles then the full details don't come out in open court, perhaps there is even a gagging clause in the settlement.

Without seeing a detailed view of the contract and the case as presented by both sides, we will never really know. Kittycat's view was that the MOO clause does not over ride the requirement to pay a contractual notice period and the bad IR35 karma is a different matter. Personally, I agree with kittycat standing up to the agent and I'd be likely to consider doing the same myself but kittycat did a lot of rambling and became embroiled in a debate which would only ever end up in a ban.

On the other hand, many people here take the view that in order to avoid bad IR35 karma or to prove their credentials as a "real" business they have to accept that a contract can be terminated without payment of a contractual notice period. Regardless of what is in the contractual notice, they would walk away without argument. To these people, kittycat is the worst kind of contractor, a disguised employee rather than in business, and will be caught by IR35. It seems that the case was settled but even if it went to court and a detailed judgement handed down, the victory by kittycat is seen as pyrrhic, IR35 caught, a settlement arising from vexatious litigation or all of these.

Is there really much further that we can go on this one?

[northernladuk]

You gonna give us a bit of background about who this was from and it's place in the process? I just see copy/pasted text, not evidence.

[Podgy]

The Argument

'The very clear obligation is for terms to be provided before the work placement is effective. The reasonsing for this is obvious. It is to provide adequate time to the worker to consider the terms upon which it is proposed the worker be engaged. The obligation to provide information focuses on core terms to include, under the Regulations, notice periods. It follows that whilst the preferred supplier agreement was in draft it was nevertheless produced to XLTDX for the purpose of identifying and complying with the obligation in the Regulations to do so in advance of the work placement.

The contents of the e-mail dated 13 May 2010 also affirmed and repeated the position.

We refer you to regulation 14 (4) which provides "neither an agency nor an employment business may vary any terms set out in a document issued in accordance with paragraph (2) unless the work seeker to whom they relate agrees to the variation."

We acknowledge, as we must, the assignment schedule and terms and conditions were signed by our client. We agree the document was not completed until 23 May 2010 being sometime after the work placement commenced.

If follows, therefore, that XAgencyX was not at liberty to unilaterally change the terms of engagement post appointment. Such an attempt is prohibited by the Regulations. Furthermore, regulation 31 states that a term which is prohibited or made unenforceable shall not be binding.

[oscarose]

Eh ? Even assuming it's the same person, why does that post on Mumsnet have implications for "Tiddles" etc posts here ?

<Genuinely confused>

Boo2

Tiddles is quite a common name for a kitty cat.

[NotAllThere]

A part of me wants this to be real and this happened and full details will be published adding a very useful extra weapon to our armoury.For once I would like to be wrong... it's just well...

When someone with rather more credibility than some daft moggy bint gets such a result, then I'll believe it. Until then, not. Even with an affidavit witnessed by three gods...

Other thread moved to Light Relief, which is where fantasy tales belong.

[Boo]

played us like a fiddle.....

Eh ? Even assuming it's the same person, why does that post on Mumsnet have implications for "Tiddles" etc posts here ?

<Genuinely confused>

Boo2