Reply to: Does this affect or pose a risk to my "out of IR35" contract status

[TonyF]

I'm now concerned... might have to get it reviewed even though I still have 4 months left.... Where does one get this done?

In no particular order Qdos, Bauer and Cotterell, Abbeytax, IPSE.

They all offer different services at different prices depending on what you really want / need.

[Spikeh]

I think generally its concluded that I am exposed to IR35 which is not ideal but trying to have THAT conversation could potentially cause a bit of a rift as there are 15 PMOA's of which over half are contractors.

Difficult / impossible conversations to have. Your client and / or "manager" won't care about your tax status.

[Doggiefan]

Firstly. Did you have your contract checked before you started. Are you sure you don't already have a problem with a bum contract?

I'm now concerned... might have to get it reviewed even though I still have 4 months left.... Where does one get this done?

[Doggiefan]

Hi All

Thanks for the feedback. To clarify a few things
1. By manager I am referring to the overall team manager (we're a team made up of 2 FTE and 3 contractors).
2. My contract for the role is fine. The contracts I am referring to are "mini-service internal contracts". What we (the PMO Analysts) will/not deliver as part of our PMO service to the programme managers.
3. Objectives - these are largely around the role job description and role responsibilities. Which I am okay with... but is actively recording and tracking against these (which is being done for the FTE) okay? I don't mind a discussion but surely documented evidence in the corporate system puts me at risk?
4. with regards to the internal learnings, I will go through the list (I've been asked to complete 20) and find out which ones are mandatory

I think generally its concluded that I am exposed to IR35 which is not ideal but trying to have THAT conversation could potentially cause a bit of a rift as there are 15 PMOA's of which over half are contractors.

[SueEllen]

I contract when I'm not able to get consistent business - as a back-up - and even then I prefer to get remote contracts so I don't have to deal with a client's internal political and bureaucratic nonsense as they generally restrict me from performing my services in the best way possible.

I didn't say using a particular form or document was a high risk - I just used a "document" as an example (and was actually thinking more about larger docs like specifications and requirements etc). In that particular example, using a client provided document AND being told by the client how to complete it constitutes direction. Being asked to complete a project is obviously not direction; being asked to complete a project, then having someone tell you how to complete that project in minute terms, does.

Last time I checked, contractors are supposed to be a business in their own right. I provide documents of all sorts to my clients - using the templates my business has developed over the years. If a client wishes to re-brand the document or restructure it to fit in to their internal practices (and yes, this does happen, even to whingy old me), that's up to them - but my services are that of a competent professional that delivers services the way I see fit, because I take all the risk of delivering those services in return for whatever remuneration we have agreed.

Would you ask a builder to do a course on how they can best represent your company? No, you'd put strict terms in the contract, get them to sign an NDA or confidentiality agreement, and sue them if they didn't abide. There's a reason most contracts we sign have a term that state "these terms form the entire agreement" - because scope is extremely important to distinguish between a contract of services and a contract of service. There of course has to be some flexibility, but a written down scope is extremely important - otherwise the client can (and often will) take the piss - though it's not always conscious. If you're happy with that, then that's fine - you go for it, but I am not.

Just because I have values and principals that I run my business by, doesn't mean I'm a whinger. I'm most definitely not the run-of-the-mill contractor that I often see working for my clients, nor am I a yes man - I will complete my work in the most efficient and professional manner that I am able to.

If a course or document is not relevant to you then you don't tell a minion at the client company you notify someone more senior. You explain why you signing document or doing the course is is a legal risk to them. However it means you need to do proper due diligence to confirm legally the course/document isn't relevant as health and safety, compliance and equality legislation actually covers a lot more than people think.

Oh and the building trade is dreadful example for frequently not having simple health and safety measures in place - why did you think a previous government brought in the charge of corporate manslaughter which makes directors liable?

[WTFH]

In that particular example, using a client provided document AND being told by the client how to complete it constitutes direction. Being asked to complete a project is obviously not direction; being asked to complete a project, then having someone tell you how to complete that project in minute terms, does.

Last time I checked, contractors are supposed to be a business in their own right. I provide documents of all sorts to my clients - using the templates my business has developed over the years. If a client wishes to re-brand the document or restructure it to fit in to their internal practices (and yes, this does happen, even to whingy old me), that's up to them - but my services are that of a competent professional that delivers services the way I see fit, because I take all the risk of delivering those services in return for whatever remuneration we have agreed.

You're not very professional if you refuse to help the client by using their standard documentation layout.

Do you also refuse to fill in their on-line time sheeting because it's not the same as the time sheet your company has created, instead insisting that they print off your paperwork, sign it, then send it back to you?

If a client has standards and has implemented those, that is not giving a contractor specific direction. I can write a spec using the language I would use, with my own style of writing, but using their standard templates.
If I were to do specs using my company's templates, then the client would have to re-write them before passing them on to developers. The result would be extra cost and delays, it would be unprofessional and incompetent of me to deliberately put obstacles in the way of delivering good solutions efficiently.

[Spikeh]

Are you sure you’re a contractor and not just a whinger?

Being told to use particular forms for dev requests does not put you inside IR35. If you think that is being directed, then when you sign up to deliver a project you’re also being directed as to what project to deliver!

I contract when I'm not able to get consistent business - as a back-up - and even then I prefer to get remote contracts so I don't have to deal with a client's internal political and bureaucratic nonsense as they generally restrict me from performing my services in the best way possible.

I didn't say using a particular form or document was a high risk - I just used a "document" as an example (and was actually thinking more about larger docs like specifications and requirements etc). In that particular example, using a client provided document AND being told by the client how to complete it constitutes direction. Being asked to complete a project is obviously not direction; being asked to complete a project, then having someone tell you how to complete that project in minute terms, does.

Last time I checked, contractors are supposed to be a business in their own right. I provide documents of all sorts to my clients - using the templates my business has developed over the years. If a client wishes to re-brand the document or restructure it to fit in to their internal practices (and yes, this does happen, even to whingy old me), that's up to them - but my services are that of a competent professional that delivers services the way I see fit, because I take all the risk of delivering those services in return for whatever remuneration we have agreed.

Would you ask a builder to do a course on how they can best represent your company? No, you'd put strict terms in the contract, get them to sign an NDA or confidentiality agreement, and sue them if they didn't abide. There's a reason most contracts we sign have a term that state "these terms form the entire agreement" - because scope is extremely important to distinguish between a contract of services and a contract of service. There of course has to be some flexibility, but a written down scope is extremely important - otherwise the client can (and often will) take the piss - though it's not always conscious. If you're happy with that, then that's fine - you go for it, but I am not.

Just because I have values and principals that I run my business by, doesn't mean I'm a whinger. I'm most definitely not the run-of-the-mill contractor that I often see working for my clients, nor am I a yes man - I will complete my work in the most efficient and professional manner that I am able to.

[WTFH]

And this is why IR35 is such a gray area. Its difficult to prove that your work isn't being directed if you're given strict instructions on how to perform it.

Are you sure you’re a contractor and not just a whinger?

Being told to use particular forms for dev requests does not put you inside IR35. If you think that is being directed, then when you sign up to deliver a project you’re also being directed as to what project to deliver!

[Spikeh]

You seem to have a problem understanding the difference between "mandatory" and "optional".

Absolutely not. I can't remember the exact forms or courses, but they were mostly employee nonsense - and most contractors there were almost definitely caught, so what the "others did" had no bearing on my decisions. Just because a client says something is "mandatory" doesn't mean it is - most of the time you're being asked to do things by middle management that don't understand or care what your relationship is.

The courses in particular were ominous - about 20 of them, covering aspects from H&S (which I did) to "Employee Conduct" and training on how to represent the company when working with outside clients or suppliers.

This is the problem with taking a gig where you're expected to be in an office 9-5 - worsened by being "part of a team" and essentially doing the same work as employees. Suffice to say, I am very careful about the gigs I take these days as I have learned that arguing with client's employees about what I'm there to do is a fruitless escapade.

[SueEllen]

Wow, shocked at that!

I've been asked to fill employee forms in by a small insurance company I worked for but refused - that lost me a renewal, but they didn't end my contract early. I was actually glad to go as they were also trying to impose "no flexitime" on everyone involved in the project that was late - explaining that flexitime didn't apply to me, and - with respect - I would be continuing my preferred 7-4 pattern regardless, didn't go down too well.

Was asked by a well known infrastructure company (that was fulfilling a contract for an insurance company) to do internal courses meant specifically for employees. They threatened to frog march me off site, but I stuck to my guns and calmly explained why I wouldn't complete them - got the usual bumpfh of "no other contractor has declined before?", but they eventually understood.

I ended that same contract early due to the fact they 1) wouldn't let me use my own hardware and the hardware and OS they provided me was woefully inadequate and 2) I fought and fought for access to downloading necessary and unavoidable OSS packages, but they refused, citing that every package had to be on an "approved" list, they had to jump through hoops and they didn't think it was necessary (I work with the web and MS stack, and they were an IBM / mainframe driven place). There was so much more wrong with that gig, but the fact I quite literally couldn't perform the services due to their internal security policies was the straw that broke the camel's back

You seem to have a problem understanding the difference between "mandatory" and "optional".

[Spikeh]

Not a good example.

Functional analysts have to write functional specs. The functional specs must use a standard template. Functional specs must be reviewed. That's how it works in some regulated environments. It's not do with direction or supervision - it's the mandated quality process.

And this is why IR35 is such a gray area. Its difficult to prove that your work isn't being directed if you're given strict instructions on how to perform it.

[Spikeh]

Personally I've never been told by a client to do optional courses and I would simply refuse.

Wow, shocked at that!

I've been asked to fill employee forms in by a small insurance company I worked for but refused - that lost me a renewal, but they didn't end my contract early. I was actually glad to go as they were also trying to impose "no flexitime" on everyone involved in the project that was late - explaining that flexitime didn't apply to me, and - with respect - I would be continuing my preferred 7-4 pattern regardless, didn't go down too well.

Was asked by a well known infrastructure company (that was fulfilling a contract for an insurance company) to do internal courses meant specifically for employees. They threatened to frog march me off site, but I stuck to my guns and calmly explained why I wouldn't complete them - got the usual bumpfh of "no other contractor has declined before?", but they eventually understood.

I ended that same contract early due to the fact they 1) wouldn't let me use my own hardware and the hardware and OS they provided me was woefully inadequate and 2) I fought and fought for access to downloading necessary and unavoidable OSS packages, but they refused, citing that every package had to be on an "approved" list, they had to jump through hoops and they didn't think it was necessary (I work with the web and MS stack, and they were an IBM / mainframe driven place). There was so much more wrong with that gig, but the fact I quite literally couldn't perform the services due to their internal security policies was the straw that broke the camel's back

[NotAllThere]

If they say "I want you to write this document using this template, but I'll be reviewing it and approving it before it can be presented to upper management", its high risk. as they are directing / supervising your work.

Not a good example.

Functional analysts have to write functional specs. The functional specs must use a standard template. Functional specs must be reviewed. That's how it works in some regulated environments. It's not do with direction or supervision - it's the mandated quality process.

[SueEllen]

3. Complete a list in house learnings (mix of mandatory and optional ones that manager insists I do because everyone else in the team does)

You only do the ones that are mandatory for Health and Safety, Compliance etc reasons. Ignore the optional ones as you are there to provide a service and not an employee. If you are ever asked why you haven't done the optional ones simply say there isn't sufficient time and point out they are optional anyway.

Personally I've never been told by a client to do optional courses and I would simply refuse.

BTW the mandatory ones are to ensure you can't sue them for Health and Safety issues, as much as they can't sue you/walk you off-site for money laundering etc.

[Spikeh]

IR35 will never come into it.

Unless HMRC investigate, of course. Then IR35 will come all over it.