Reply to: Failed IR35 Review - QDOS

[ladymuck]

Last push for this event IR35 Contractor Roundtable Event
https://www.contractoruk.com/forums/ir35-reform/139038-ir35-contractor-roundtable-event.html

FTFY

[Andy Hallett]

Last push for this event IR35 Contractor Roundtable Event
https://r.tapatalk.com/shareLink/top...ink_source=app

[Paralytic]

The problem with agile is that the contractor's workload is dependent on what is placed by the Product Owner in the Kanban board. This makes him fully integrated into the team, as the contractor is interchangeable with any other developer in the team.

In order to act as a contractor outside IR35 there needs to be a seperate board or set of tasks defined and carried out by the contractor.

This is one thing that struck me when I first started working agile, that control is exerted by the board and its priorities, you no longer have your "area" in the past you would have been given a longterm task lasting several months.

I disagree. Assuming you have been brought in by the client because you can provide services that cannot be delivered by the permanent employees within the team, then, during the Sprint, you would just select the stories that need those skills (the whole idea that any member of a Scrum team can pick up any story is great in theory but rarely happens in practice).

Of course, if it is the case that either you or a permanent employee could deliver the same story then, in all reality, you are a disguised employee anyway and should be working under IR35.

So, nothing to do with agile; all to do with the role you're doing and whether its different from what permies are doing.

[quackhandle]

You know that the point is to use QDOS's feedback to get the contract change - which will almost always be agreed to?

It's not like Permie land where you get what you're given, agencies won't say this but they accept and process changes ALL THE TIME.

Hays always did this. "your the first to mention this, we can't change the terms of the contract"

"I won't be starting on monday then, can you inform the client?"

Hays: "Erm...we'll add them as amendments."

qh

[PerfectStorm]

You know that the point is to use QDOS's feedback to get the contract change - which will almost always be agreed to?

It's not like Permie land where you get what you're given, agencies won't say this but they accept and process changes ALL THE TIME.

Taking a review with an Inside determination due to one point, and not changing that one point, is madness. Push the start day out if they won't amend it in time. Or just sign it with amends the night before, in the morning on your way out etc - you have more leverage here than you think.

[LondonManc]

Whilst we are on the subject.. I have downloaded a template from QDOS which has 'total price for this contract' field. I am putting the following down:

'Estimated £xxx based on an assumption of 1760 billed hours between the commencement date and the expected completion date.

This figure is an estimate only. Ongoing billing occurs as per the hourly rate as detailed below. There is no obligation from the CLIENT to provide said amount of hours of work and there is no obligation from the CONSULTANCY to accept any work.'

Does that sound ok?

Is it a fixed price contract?

[northernladuk]

Then this template makes no sense? Why does it have a total price and an hourly rate lol

That's a good question I can't answer sorry. Is it there for deletion so you can use one or the other? I dunno
I can't remember signing for a fixed price piece of work that included an hourly rate in the past.

[cannon999]

Not really. The fact you've mentioned hours, just summed up the hours vs price per hour and then stated it's an estimate and can change doesn't change anything from the norm. All you are doing is doing the sums. Still looks like a 3 monther at £xxx per hour. You are just demonstrating the outcome of the flexible pounds per hour agreement.

Total price is total price. All in, no deviations or stipulation of when the work is done. You will get this widget for £xxxx by XX date. Period.

Then this template makes no sense? Why does it have a total price and an hourly rate lol

[northernladuk]

Whilst we are on the subject.. I have downloaded a template from QDOS which has 'total price for this contract' field. I am putting the following down:

'Estimated £xxx based on an assumption of 1760 billed hours between the commencement date and the expected completion date.

This figure is an estimate only. Ongoing billing occurs as per the hourly rate as detailed below. There is no obligation from the CLIENT to provide said amount of hours of work and there is no obligation from the CONSULTANCY to accept any work.'

Does that sound ok?

Not really. The fact you've mentioned hours, just summed up the hours vs price per hour and then stated it's an estimate and can change doesn't change anything from the norm. All you are doing is doing the sums. Still looks like a 3 monther at £xxx per hour. You are just demonstrating the outcome of the flexible pounds per hour agreement.

Total price is total price. All in, no deviations or stipulation of when the work is done. You will get this widget for £xxxx by XX date. Period.

[cannon999]

Whilst we are on the subject.. I have downloaded a template from QDOS which has 'total price for this contract' field. I am putting the following down:

'Estimated £xxx based on an assumption of 1760 billed hours between the commencement date and the expected completion date.

This figure is an estimate only. Ongoing billing occurs as per the hourly rate as detailed below. There is no obligation from the CLIENT to provide said amount of hours of work and there is no obligation from the CONSULTANCY to accept any work.'

Does that sound ok?

[LondonManc]

Generally speaking SC - or any clearance requirement - can be ignored for IR35 since it applies to everyone. If you can offer a properly and currently cleared substitute that meets the client's security needs (always remembering that clearance criteria vary with the role) then it should not mean that an RoS is impossible. However...

The Rule is "reasonably unfettered" - "reasonably" has a clear meaning, there has to be a good commercial (i.e. not policy or simple unwillingness) reason not to accept the offered worker, such as lacking a relevant technical ability, and "unfettered" means it's not subject to an onerous approvals process beyond checking suitability (e.g., "we won't accept one anyway"...).

And, of course, the subbie has to take over the whole existing contract and all its Ts&Cs in its entirety, and not just be subcontracted to do some element of the contracted work.

Actually doing it is the golden bullet, the right to do it, providing is it genuinely reasonably unfettered*, should be a golden bullet but is easily side-lined if you don't meet the above criteria.




* A case was lost some years ago when the client's HR manager said in court that although there was an RoS clause, the client would not accept a subbie under any circumstances. And was allowed to get away with that breach of contract law by te judge.

That sub-note is ridiculous. While we know that they can just bin you off at any moment despite the notice clause, it's one thing to have a commonly known flaw like that but something else entirely to have a clause that you have no intention of following.

[malvolio]

Are there any actual real cases of IT contractors being investigated and found inside?

That case study about agile being 'inside' looks completely ridiculous to me. So if the client controls what work needs doing - this means the contractor is inside? That sounds completely false. Who should decide what work needs doing then? The contractor?

The classic reference is the guy who had a clear outside IR35 contract for several years, got complacent and started doing whatever was asked of him and had the contract from that point on classified (and taxed) as inside. You should only be doing what is defined in the schedule of work tied to your contract. Many agile-based jobs can't meet that requirement since the work itself changes over time, often (to my jaundiced eye) at random, as the wider requirement changes

These are not simple decisions and are emphatically not generalised statements of in or out. Every one has its own peculiarities.

Then again, the word "ridiculous" can only accurately be applied to the IR35 legislation. Everything else is simply random guesswork until it gets to court.

[elsergiovolador]

In order to act as a contractor outside IR35 there needs to be a seperate board or set of tasks defined and carried out by the contractor.

The taxman still may say that the board is setup separately as part of the tax avoidance arrangement. I.e. if that separate board was integrated into the team's board, the contractor could still do the work. I think this could only count if the entire board was created at the time of signing the contract and just lists the tasks that are in the contract and contractor has a sole control over the board (client with read only access).

I also think that this is ridiculous but it shows the direction where the things are going. I can disagree with that, but the taxman with unlimited funds eager to lodge cases even when there is remotest chance of win creates chilling effect for both sides. When clients read such guidance, are they going to happily risk having a fight? That's why I believe most of work moving forward will be inside, even if that is outside in all but name, just to be "safe". The guidance also gives pointers how to ensure the contract is inside.

[cannon999]

Are there any actual real cases of IT contractors being investigated and found inside?

That case study about agile being 'inside' looks completely ridiculous to me. So if the client controls what work needs doing - this means the contractor is inside? That sounds completely false. Who should decide what work needs doing then? The contractor?

[BlasterBates]

The problem with agile is that the contractor's workload is dependent on what is placed by the Product Owner in the Kanban board. This makes him fully integrated into the team, as the contractor is interchangeable with any other developer in the team.

In order to act as a contractor outside IR35 there needs to be a seperate board or set of tasks defined and carried out by the contractor.

This is one thing that struck me when I first started working agile, that control is exerted by the board and its priorities, you no longer have your "area" in the past you would have been given a longterm task lasting several months.