Reply to: MoO example?

[Qdos Contractor]

This would be a minor point with other IR35 key tests carrying more weight. Being able to determine your own hours and work location would have more to do with control. Ideally you would have the right to dictate your own working hours and be able to work from home if you are able. However in practice this isn’t always practice or realistic.

Overall I wouldn’t consider this to have much of an impact on your IR35 status and I would look at the overall working relationship to get an accurate indication.

Jon

[psychocandy]

OP - do they allow WFH normally?

If not, this sounds like, umm no you can't WFH so dont try it.....

Also might be a bit off that you assumed you could.

[malvolio]

Should have informed the client that you'll be providing your company services on said day but from your home location

Too which they reply 'ok but we won't pay you for that day'. Maybe ok for MoO but blows a hole in control by denying you the option to work from home...

As I said a very minor pointer, not a defence

[adubya]

Should have informed the client that you'll be providing your company services on said day but from your home location

[MrMarkyMark]

You should be keeping an IR35 dossier. Every little thing that helps your case should go in it.

This is one, on two points.

1. They offered work under certain conditions that day, you declined it, they did not offer work on your terms. You both demonstrated no MOO, much more than if you had worked at home for them. MOO means there is an obligation to offer work and an obligation to accept work. It can refer to the obligation to renew, or the obligation to offer or accept work during the contract. One day is hardly conclusive and is unlikely on its own to win you any case, but what happened is certainly something which could be used to argue there is no MOO. It definitely belongs in your IR35 dossier.

2. They treated you differently from how they treat employees. This can be used to argue that you are not "part and parcel" of their company. Again, it is only one thing. But it should definitely go in your dossier for this reason as well.

This does not mean that because this happened you can now stay there for 30 years, take part in all employee benefits, let them change what you do every day, etc, etc. It's only a small thing but it is certainly worth keeping a record of it.

Both good points for this situation. However, if he had told them he was working from home, rather than asking, it puts a different slant on the situation...

[WordIsBond]

You should be keeping an IR35 dossier. Every little thing that helps your case should go in it.

This is one, on two points.

1. They offered work under certain conditions that day, you declined it, they did not offer work on your terms. You both demonstrated no MOO, much more than if you had worked at home for them. MOO means there is an obligation to offer work and an obligation to accept work. It can refer to the obligation to renew, or the obligation to offer or accept work during the contract. One day is hardly conclusive and is unlikely on its own to win you any case, but what happened is certainly something which could be used to argue there is no MOO. It definitely belongs in your IR35 dossier.

2. They treated you differently from how they treat employees. This can be used to argue that you are not "part and parcel" of their company. Again, it is only one thing. But it should definitely go in your dossier for this reason as well.

This does not mean that because this happened you can now stay there for 30 years, take part in all employee benefits, let them change what you do every day, etc, etc. It's only a small thing but it is certainly worth keeping a record of it.

[VectraMan]

Hi all,

I requested to work from home the other day as I was going to pick up the wife and one of the kids who was coming out of hospital. It's the sort of thing the permies here request and get often enough.

The email reply I got from the person who signs my time-sheets was not to bother coming in that day.

So they said yes?

[pr1]

MoO example

[northernladuk]

OK fair-do's, what about the difference by the client between the permie behaviour and that accorded to the...err B2B supplier?

It isn't unheard of for permies to request some time off for something and be told to take half a days holiday either though so in some cases permies are treated the same. It's not a clear enough argument to really hold any water IMO.

[MrMarkyMark]

OK fair-do's, what about the difference by the client between the permie behaviour and that accorded to the...err B2B supplier?

Yeh, you are being treated differently, but not likely to count for much unless there is an actual policy strictly saying contractors can't WFH.

Where I am it just depends, I can WFH if I like and when I like, I usually decide on the day, others sat around me usually ask permission in advance, for doing it.
However, the others around me are general BAs rather than a product specialist SME type role.

[jamesbrown]

I don't interpret it as just being after the contract. If I was contracted to build WebsiteA, but mid contract they asked me to look at TradingSystemA or even do some Business Analysis on iOSAppA, I would refuse it as I am not obliged to accept that work, its not what my contract stipulated I was there for

Absolutely, it also applies during a contract for precisely the reason you mention.

[JoJoGabor]

I don't interpret it as just being after the contract. If I was contracted to build WebsiteA, but mid contract they asked me to look at TradingSystemA or even do some Business Analysis on iOSAppA, I would refuse it as I am not obliged to accept that work, its not what my contract stipulated I was there for

[malvolio]

It's not actually Mutuality of Obligation, it's an irreducible level of mutuality that's the decider. In this case they haven't offered you work and you aren't able to charge for it. In IR35 terms it's a trivial example but a case has been won based on someone being sent home when the system crashed.

However, look at the totality of the engagement, not just isolated one-offs. The law has moved on.

[Antman]

OK fair-do's, what about the difference by the client between the permie behaviour and that accorded to the...err B2B supplier?

[northernladuk]

MoO is about obligations AFTER the contract you've completed really so I'd say this isn't a factor.

This is just a general T&M and availability issue which I would also say has little to do with IR35. It's the same as when you advise you won't be available or when they say they don't have any work. A very minor point at best IMO