Reply to: IR35, MoO and vacation

[SpontaneousOrder]

I'd say being project specific is the bare minimum to not imply MoO, but by itself not enough to show lack of MoO.

And presumably actually exercising it makes it rock solid.
I got the project name put into my schedule, although I'm not sure the client really understood the implications. I'm hoping that this project finishes in 3 or 4 months, rather than 1 or 2 (it's not 100% clear yet) so that I can demonstrate the lack of MoO by sodding off without any notice period - but without wasting the lion's share of a 6 month extension. I'd happily sacrifice 2 months of work for it though - especially as this place makes me want to kill myself.

[Contreras]

I'm unsure about this. That would mean so long as you finished every contract, whether completing the contract (like a good contractor should) and no extension offered, or being terminated half way through, you've demonstrated lack of MoO and so you're scott free. All this even though you could have in theory been treated and controlled like a permie on each contract.

I'm not convinced that turning down an extension shows lack of MoO. If you finished the contract early, they offered you something different to do and you turned that down, then that's clear, but not being offered an extension or being offered one and turning it down doesn't (in my mind) show anything with respect to MoO.

Ideally the contract schedule lists project specific deliverables, with a quantifyable measure of completion, it's signed by both parties, and you both accept that is all that you will be doing. The schedule may be complete early and the contract terminated, or you're offered additional work by the way of new schedule(s), which you are free to decline, and there is your documented lack of MoO.

If the schedule simply states a generic job description/title, e.g. "software design", then IMHO being terminated or turning down an extension says nothing about MoO.

Obviously there are grey areas in between. The IR35 reviews I've had insist that a specific project be named but seem accepting of generic task descriptions beyond that. I'd say being project specific is the bare minimum to not imply MoO, but by itself not enough to show lack of MoO.

[TheFaQQer]

I'm unsure about this. That would mean so long as you finished every contract, whether completing the contract (like a good contractor should) and no extension offered, or being terminated half way through, you've demonstrated lack of MoO and so you're scott free. All this even though you could have in theory been treated and controlled like a permie on each contract.

I'm not convinced that turning down an extension shows lack of MoO. If you finished the contract early, they offered you something different to do and you turned that down, then that's clear, but not being offered an extension or being offered one and turning it down doesn't (in my mind) show anything with respect to MoO.

[Zero Liability]

I'm unsure about this. That would mean so long as you finished every contract, whether completing the contract (like a good contractor should) and no extension offered, or being terminated half way through, you've demonstrated lack of MoO and so you're scott free. All this even though you could have in theory been treated and controlled like a permie on each contract.

All 3 are differentiating aspects from an employee, lack of MOO no less than the other 2. It's up to HMRC to prove none of these pillars apply.

[GillsMan]

It's only a small thing, I know. But it's about being in a particular mindset. To me, anyway. It will hopefully stop me slipping up on something big.

That's a good mindset IMO. Watching your terminology can really help you get into the correct mindset. Acting as though you're a company when in reality you are an individual doesn't come naturally - at least not to me it didn't - so choosing your words carefully helped. E.g. I never talked about salary/wages when I meant invoices, I never called my client contact my boss. I don't go for interviews I go for pitch meetings. Don't get me wrong, sometimes you have to adjust your wording down a bit when talking to agents, but I think you're right to think about what you say.

[CheeseSlice]

As I understand it, you only have to demonstrate one of the 3 pillars to be considered outside IR35 - D&C, MoO or RoS.

I'm unsure about this. That would mean so long as you finished every contract, whether completing the contract (like a good contractor should) and no extension offered, or being terminated half way through, you've demonstrated lack of MoO and so you're scott free. All this even though you could have in theory been treated and controlled like a permie on each contract.

[kingcook]

We have a team calendar at work just to keep tabs on where people are. I think I'm the ONLY contractor that puts 'Out of Office' when I'm taking time off. Everyone else puts 'Annual Leave', despite the fact that, presumably, they're all LTDs working outside of IR35. I know it's only a little thing, but I find that odd.

It makes me cringe at current client co when other contractors fill in the annual leave chart (shared spreadsheet). They're effectively asking permission for time off by colouring red in the boxes waiting for them to turn green.

Like yourself, I play it differently. I discuss with the client that I'm looking to take X days off in Y month, and ask when would be the best time to do this, taking any deadlines or other things into account.

It probably seems like a small thing to many, but to me it means I'm in control. This way is best to keep the relationship good.

[tractor]

...

You & I have an understanding of it's definition, permies may not and it's for that reason I would label my time off on a shared calendar as such - it just saves receiving calls from employees at the client co calling when I'm with another client or if I'm abroad on holiday, i.e. at times when you don't want to, or shouldn't expect to field calls from them.

My old programme manager (about 2 years older than me )asked today how do I book a holiday? I told him to call Saga.

[GazCol]

It's only a small thing, I know. But it's about being in a particular mindset. To me, anyway. It will hopefully stop me slipping up on something big.


From BusinessDictionary.com - Online Business Dictionary

Annual Leave


The amount of hours or days employees of an organization is permitted to be away from their employment position within a year's time without consequences.

You & I have an understanding of it's definition, permies may not and it's for that reason I would label my time off on a shared calendar as such - it just saves receiving calls from employees at the client co calling when I'm with another client or if I'm abroad on holiday, i.e. at times when you don't want to, or shouldn't expect to field calls from them.

[JRCT]

I don’t think the terminology they use on a shared calendar has any bearing on IR35 – I also use ‘annual leave’ on my client co’s calendar, it’s not an indication that I’m taking any leave entitlement, but more of a warning to permies not to call me during these dates.

It's only a small thing, I know. But it's about being in a particular mindset. To me, anyway. It will hopefully stop me slipping up on something big.


From BusinessDictionary.com - Online Business Dictionary

Annual Leave


The amount of hours or days employees of an organization is permitted to be away from their employment position within a year's time without consequences.

[GazCol]

We have a team calendar at work just to keep tabs on where people are. I think I'm the ONLY contractor that puts 'Out of Office' when I'm taking time off. Everyone else puts 'Annual Leave', despite the fact that, presumably, they're all LTDs working outside of IR35. I know it's only a little thing, but I find that odd.

I don’t think the terminology they use on a shared calendar has any bearing on IR35 – I also use ‘annual leave’ on my client co’s calendar, it’s not an indication that I’m taking any leave entitlement, but more of a warning to permies not to call me during these dates.

[JRCT]

We have a team calendar at work just to keep tabs on where people are. I think I'm the ONLY contractor that puts 'Out of Office' when I'm taking time off. Everyone else puts 'Annual Leave', despite the fact that, presumably, they're all LTDs working outside of IR35. I know it's only a little thing, but I find that odd.

[speling bee]

A little knowledge is a dangerous thing as you can see.

At least you're safe as houses.

[Zero Liability]

As others have said, this is a D&C issue. Mutuality is concerned with the obligation of the client to provide work and for the contractor to accept it (or absence thereof). Taking time off is not about being offered and (not) accepting work, it is about control over how you do the work that has been offered and accepted. Lack of D&C implies that you inform the client, as a courtesy, when you will be working. Also, and this should go without saying really, but there's no point drafting an e-mail (as "evidence" of lack of D&C) if the client had previously directed you to take a certain period off.

Indeed, this is how the contract reviewers seem to handle it as well, which confused me as they deal with notice periods as pertaining to MoO (or lack thereof in the case of sufficiently minimal ones.)

[jamesbrown]

With that being said, QDOS passed my contract on all three fronts (D&C, MOO, RoS) even though I am required to obtain written authorisation 'to take annual leave', although the reviewer did recommend removing the annual leave bit and just keeping the bit referring to absence from the assignment.

Sure, D&C involves many elements (what, when, where, how), which is why we pay for contract (and WP) reviews.