Reply to: No Contract

[Denny]

I'd be interested to see how many of us contractors have contracts that are based on deliverables. I would suggest it is a relatively small percentage.

Maybe ATW can run a poll...

Not many, I agree but if you are in programme management, like me, then it is possible. However, like anything you have to fight for your position not just buckle to pressures that are unreasonable.

[Forumbore]

I'd be interested to see how many of us contractors have contracts that are based on deliverables. I would suggest it is a relatively small percentage.

Maybe ATW can run a poll...

very few contracts are run on deliverables or SLAs. Whilst I like what denny is trying to achieve, I just think notice periods are a waste of time anyway, and by that I mean both ways.
Having said that if the contract is an SLA then a notice period would be central to the contract anyway.
If there is a deliverable then a notice clause defeats the whole object of such a contract and I am pretty sure that the revenue would pick that

[ratewhore]

I'd be interested to see how many of us contractors have contracts that are based on deliverables. I would suggest it is a relatively small percentage.

Maybe ATW can run a poll...

[senditback]

I have had that before, in all fairness whilst not being ideal it is generally ok

[Denny]

I think the above arguments are wrong. For a start a lot of genuine employees (permies) can be gotten rid of quite easily and they have no rights at all for the first year of so of employment and cannot even go to a tribunal for unfair dismissal.

If the issue of notice was so strong as a pointer to being outside of IR35 then most accountants would argue that this should be a two sided arrangement not one.

I would rather test my IR35 status against my freedom to carry out the work on my own premises, in my own time, with no restrictions on working for other clients if I can squeeze the time in and generally act as though I am completely unsupervised except to get the deadlines for each deliverable met. To me, that is more convincing to being outside of IR35 than acting like an employee on site - using company equipment, being supervised (watched for your time spent on the job) for hours against timesheet entries, having contract hours stipulated on your Works Schedule, being allowed to use the staff canteen and so on. No wonder you're all so paranoid about notice periods being added if you are bordering on IR35 inclusion anyway by working this way.

No genuine business, operating as a true separate legal operation hired to complete deliverables is going to worry too much if they are given the added courtesy of a notice period (which can be pretty easily circumvented anyway by the client) when they were expecting enough work to last for the contract period but that doesn't happen. Also, you need to consider high street temps - secretaries and so on. They are not entitled to notice at all, yet they are still deemed employees of the EB. Therefore, the notice factor is pretty irrelevant based on that alone.

I would also think that how that notice period is operated matters a great deal. If the remaining month in the job is spent finishing off deliverables they anticipated would take longer than that is very different to giving notice because the work has completely dried up and then asking you to perform other duties to help out other staff or contractors just to keep you busy for the remaining time. The latter, I would suggest, is a pointer to IR35 inclusion and implies MOO, the former not so - just good time planning management no different in practice than if your contract was coming to its orginal natural conclusion at the end of the stipulated period on your contract.

Most true business operations would probably have other clients lined up and would refuse to take advantage of it notice anyway, particularly if there was no work to do and they were clearly outside IR35 in every other sense. If that were not the case Qdos would have recommended the removal of the client notice on my own present contract, yet they said it was safe for it to be two way given the other numerous pointers I undoubtedly have to being outside IR35.

[tim123]

No! Think about it...

Having a notice period can be made to be a pointer towards MOO. It can therefore land you into indefensible IR35-la-la-land, especially if, as Denny pointed out, there are other less clear pointers that way already.

Not having one is a clear, if not overwhelming, pointer away from MOO and hence away from IR35. It may not be a silver bullet (although it has been used as such in one or two cases ISTR), but I would rather have a weak pointer away than a stronger one towards.

The situation wrt MOO is: no MOO means not a contract of service (and therefore outside IR35), having MOO is a neutral pointer (as there's no reason why a contract for services should not have an absolute requirement for the delivery of something).

You might be right that having a notice period creates MOO. But not having one most certainly doesn't create a situation of no MOO. This requires signifcantely more than this. It is perfectly possible (and there IS case law to support this) for MOO to exist within each day of the contracted period.

If simply having no notice period in a contract was a sure fire way out of IR35, everyone would be using it.

Worse case is it's neutral, best case is it's a very small poiner outside.

tim

[malvolio]

Not quite accurate although it is all horrible when you try and dissect it. MOO means (in effect) you being able to charge when there is no work for you to do or the client having to pay when there is no work for you to do. In the case of notice, the client would in effect be required to pay to retain you after the completion of the job you were hired to do, or you would be allowed to occupy a place and be paid for doing nothing when the work is finished. No notice on your side kills that scenario.

D&C can be argued to the point of absurdity, but let's think about support work. You can be required to pick up the phone and answer it according to a preset script, becuse that's what you've been hired to do. If you can only then do one of a proscribed list of things, that's D&C. However, if you can talk to the person on the other end, offer advice based on your own skills and experience or make an intelligent decision about what to do next, it isn't.

Cold callers and call passers may be inside IR35 (not that they tend to care about such things) but it is actually quite hard to prove as soon as you allow any independence of action.

[partimer]

ir35

I agree that a notice period is useless if you are outside IR35. Would you really expect to pay a company for doing nothing ? You're trying to be a business in your own right (the objective of every contractor - or should be !). Behave like one.

On the point of MOO. Tricky one. I don't see how certain roles could ever avoid this. If you were a support person, could you deliberately avoid answering the phone if it rang ?
If you were a coder, could you say "no this spec. is boring I programming something else" and then take a spec. which is more to your liking ?

This goes back to control and obligation. The way IR35 is currently worded it really is a case by case argument and the ones getting rich are the lawyers. Truly horrible legislation.

[boredsenseless]

Lose the notice period, it isn't helpful for IR35 etc. If the job is 3 months, anyone can finish that and if you can't, consider whether contracting is for you (you have to put up with sh1t sometimes, get used to it). In extreme cases, just walk, make up family crisis if necessary.
Get the agency to send you a non signable copy of their standard contract for review, this will have all the major clauses you need to look at, without your individual details i.e. it is not your contract but tells you what you need to know. Ask for email details of the rest (duration, rate, payment terms). I would probably take a chance and start, but I would be email hassling them every day for the paperwork.
HTH

Also check your professional insurances some of them don't cover you on site unless you are performing genuine sales activity or contract/purchase order covered work.

[lukemg]

Lose the notice period, it isn't helpful for IR35 etc. If the job is 3 months, anyone can finish that and if you can't, consider whether contracting is for you (you have to put up with sh1t sometimes, get used to it). In extreme cases, just walk, make up family crisis if necessary.
Get the agency to send you a non signable copy of their standard contract for review, this will have all the major clauses you need to look at, without your individual details i.e. it is not your contract but tells you what you need to know. Ask for email details of the rest (duration, rate, payment terms). I would probably take a chance and start, but I would be email hassling them every day for the paperwork.
HTH

[malvolio]

No! Think about it...

Having a notice period can be made to be a pointer towards MOO. It can therefore land you into indefensible IR35-la-la-land, especially if, as Denny pointed out, there are other less clear pointers that way already.

Not having one is a clear, if not overwhelming, pointer away from MOO and hence away from IR35. It may not be a silver bullet (although it has been used as such in one or two cases ISTR), but I would rather have a weak pointer away than a stronger one towards.

[tim123]

I disagree with your disagreement and raise you case law. It has been shown that having any one of the three key pointers - no Moo, RoS, no D&C - is enough for a skilled representative to argue that the contract is outside IR35.

You may be correct, but having (or not) a notice period does not equal MOO(or not). It is a very tiny factor in a very complicated legal item.

tim

[malvolio]

I disagree with your disagreement and raise you case law. It has been shown that having any one of the three key pointers - no Moo, RoS, no D&C - is enough for a skilled representative to argue that the contract is outside IR35. The reverse is not however true, you have to not have (if you see what I mean!) all three to be irretreivably inside.

The problems will start when Hector finally gives up on IR35 Mk2 (where we are now) and comes up with a properly-worded IR35 Mk3. Right now, however, for a great majority of contractors, it remains voluntary.

[Denny]

Denny, pay attention, you're arguing it backwards - if you haven't got a mutual notice arrangement, you are not inside IR35 since there is a clear pointer away from employment: employees get notice, suppliers don't.

Disagree. If the client expects you to work on the client site using their equipment, fails to recognise that you can take on other clients or use a substitute, supervises your hours to make sure you're working full time for your fee and only 'allows you to work from home on certain permitted days' - in other words behaving like any other employee, which is the reality with a lot of contractors, irrespective of what their contract terms are with the EB, then you are sure as hell going to be inside IR35 should an investigation ensue.

According to your thinking, you are only exempt from IR35 at the end of the contract when you're being terminated - and without notice. That to me just means getting the worst of both worlds. Pointers to IR35 exemption require many factors to be taken into account than just an omission of a notice period in your contract. Do you honestly think that the IR would let you off IR35 inclusion just because you were booted out without notice? What about tax arrangements prior to the contract starting or once started. If, in practice, you are inside not outside IR35 then you would have been wise to channel your fees through a costly umbrella solution and not pay salary and divis from your own limited which would more than likely be less cost effective than brollies if inside IR35. For that reason alone I would certainly want my notice period honoured as I'd have nothing to lose.

[malvolio]

If the contract appears to be inside IR35 then you may as well have a notice period and take advantage of it if the client screws you. It's happened to me twice now and frankly I don't mind at all sitting on my backside for 30 days at home looking for work at the client's expense.

It's only if you're working strictly B2B without any client control, preferably from your own place of work rather than expected to work on client site full time that a notice period seems a bit odd in a contract. Having said that, you can still escape IR35 inclusion if you have notice but all the other ingredients are there for IR35 exemption. I had my contract checked out by Qdos and they said that mutual notice was not a problem for IR35 exemption.

Denny, pay attention, you're arguing it backwards - if you haven't got a mutual notice arrangement, you are not inside IR35 since there is a clear pointer away from employment: employees get notice, suppliers don't.