IR35 and Holidays

[TheFaQQer]

Just another thought on this. If you know in advance of signing a new contract or a contract extension that you will not be able to supply services to the client on certain days, is it favourable from an IR35 point of view to put these days into the contract?

If you are that worried about IR35, you tell the client that the individual is unable to provide services on those days, but the company can arrange a substitute for the individual if they would like.

The danger is that they then say "oh, we'd never accept a substitute" or similar, which gets rid of 1/3 of your IR35 defence.

[malvolio]

Just another thought on this. If you know in advance of signing a new contract or a contract extension that you will not be able to supply services to the client on certain days, is it favourable from an IR35 point of view to put these days into the contract?

Won't make any difference in reality, but also wouldn't do any harm. However, while the agencies, being basically simple souls, are only capable of thinking in terms of finish dates, your client's budget - and hence the underpinning contract - will almost certainly be based on a number of days effort required, so it should make no difference; all you'll do is move the end date out.

[northernladuk]

Just another thought on this. If you know in advance of signing a new contract or a contract extension that you will not be able to supply services to the client on certain days, is it favourable from an IR35 point of view to put these days into the contract?

Nope. Just advise them when you are in contract advising them you will be unavailable for x dates. Print that out if you want some evidence you are not asking for permission to take a holiday but it's not a big pointer.

[MrX]

Just another thought on this. If you know in advance of signing a new contract or a contract extension that you will not be able to supply services to the client on certain days, is it favourable from an IR35 point of view to put these days into the contract?

[MrX]

Thanks for the replies thus far. Perhaps, "the client's manager that I report to on a daily basis" is the wrong choice of words but I do supply software development and support services to the client and this involves daily contact with a representative from the client. I don't know how the phrase this but surely this case in numerous legitimate business contracts.

I've had my contract and working practises (which I religiously stick to) reviewed by a third party and they have confirmed that I am outside of IR35. I can't see what more I can do.

[jamesbrown]

I'd be more worried about the potential D&C issues with daily supervision and the implication of this for how the client views you. There should be no obligation to complete work either outside of the specific schedule of work or outside of the dates for which the current contract applies. Planning follow-up activities is one thing, but formally scheduling leave outside of your contract period is another. Also, when scheduling leave, you are informing them of when you plan to take leave, not asking for leave. It may involve negotiation, obviously, but the direction should come from you. What makes you think you're operating outside IR35 on this contract?

[TheCyclingProgrammer]

My point is, will completing this application ahead of any formal offer be viewed as me being treated like an employee because the perception by the client's manager is that I am going to be continually employed after my contract expires....or am I just over-analysing this?

Possibly, but nothing wrong with erring on the side of caution.

My approach to things like this is to try and step back from the issue of IR35 and just look at it from the POV as a business that is supplying services to the client. Your company does not have a holiday - it provides services for a contracted duration. What your company's employees do when your company is out of contract is of no concern of your clients. Your company is most certainly not obliged to extend beyond the current contract. On that basis, I would tell them that your company and its employees have no obligation to follow their holiday procedures.

However your existing contract might have some provisions for continued support beyond the initial project completion that they would expect you to honour. Does it? If not - if they simply want to engage you on a new contract/extension for a new project - then negotiate with them. Tell them you are not able to provide services over the period that you are on holiday but would be willing to extend the contract starting at a later date. It has no bearing on your IR35 status, but does potentially mean you lose work. But that's purely a business decision.

[northernladuk]

Could this be a real problem with MoO or just a bit of presumptuous forward planning by the manager?

[TheFaQQer]

I would say reporting to a manager on a daily basis is more of an indication of being inside IR35 than being asked to document your availability should a future contract opportunity or renewal arise.

+1

Complete it until the end of the contract, and when you send it back, make it clear that you haven't put in anything after the contract expiration.

[GazCol]

I'm a contractor supplying development services to a bank and am operating correctly outside of IR35. My contract ends in November but a manager at the client site whom I report to on a daily basis is asking me to complete a management application with the days that I will not be providing services over the Christmas holiday period. There has been no contract extension formally given to me but I am of the understanding that the projects that are planned at the client site after my contract expires will require a number of resources of which I'm likely to be one due to my existing knowledge of the client's applications and my skills.

My point is, will completing this application ahead of any formal offer be viewed as me being treated like an employee because the perception by the client's manager is that I am going to be continually employed after my contract expires....or am I just over-analysing this?

I would say reporting to a manager on a daily basis is more of an indication of being inside IR35 than being asked to document your availability should a future contract opportunity or renewal arise.

[MrX]

I'm a contractor supplying development services to a bank and am operating correctly outside of IR35. My contract ends in November but a manager at the client site whom I report to on a daily basis is asking me to complete a management application with the days that I will not be providing services over the Christmas holiday period. There has been no contract extension formally given to me but I am of the understanding that the projects that are planned at the client site after my contract expires will require a number of resources of which I'm likely to be one due to my existing knowledge of the client's applications and my skills.

My point is, will completing this application ahead of any formal offer be viewed as me being treated like an employee because the perception by the client's manager is that I am going to be continually employed after my contract expires....or am I just over-analysing this?