Reply to: Inside IR35 - should end client pay unconditionally for contractor being available?

[northernladuk]

FTC's are employment contracts.

Ah true enough but not quite on topic for this thread as it says in the title 'Inside IR35'

[BlueSharp]

That link is all about employees and has nothing to do with us. For example it mentions delaying the start date is breach. Not for us. The contract starts on the date put forward but if there is no work for the contractor the don't come in etc. Didn't really read the rest of it but can't believe much else in there relates to us either.

FTC's are employment contracts.

[northernladuk]

Agreed it has nothing to do with his tax determiniation but the type of contract.

https://www.warnergoodman.co.uk/site...draw-job-offer

That link is all about employees and has nothing to do with us. For example it mentions delaying the start date is breach. Not for us. The contract starts on the date put forward but if there is no work for the contractor the don't come in etc. Didn't really read the rest of it but can't believe much else in there relates to us either.

[BlueSharp]

He says explicitly inside IR35. IR35 would not factor if he was FTC. If he's got a contract it will be perfectly clear in his contract. His tax situation makes no difference to the engagement with the client.

Agreed it has nothing to do with his tax determiniation but the type of contract.

https://www.warnergoodman.co.uk/site...draw-job-offer

[eek]

He’s an agency worker and no work is available so he won’t be paid.

end of story

[northernladuk]

It really depends on the contract if it's a fixed term employee contract I absolutely would expect to be paid and would use all the perm protection to ensure I was paid. If it's a temporary worker agency type contract in the style of paid for hours work it's not so clear.

He says explicitly inside IR35. IR35 would not factor if he was FTC. If he's got a contract it will be perfectly clear in his contract. His tax situation makes no difference to the engagement with the client.

[BlueSharp]

It really depends on the contract if it's a fixed term employee contract I absolutely would expect to be paid and would use all the perm protection to ensure I was paid. If it's a temporary worker agency type contract in the style of paid for hours work it's not so clear.

[northernladuk]

You have made yourself available for work at an agreed time. If they aren't in a position to offer any then that isn't your problem. Presuming you charge in units of days then bill them for the day but ask them when they are going to be ready for you then try again.

But it is your problem. It's stated in black and white in the contract.

[SussexSeagull]

You have made yourself available for work at an agreed time. If they aren't in a position to offer any then that isn't your problem. Presuming you charge in units of days then bill them for the day but ask them when they are going to be ready for you then try again.

[northernladuk]

NLUK I agree with your points in general but I'm not sure that the situation I've described is "exactly the same thing" as not working on Christmas and bank holidays. The situation I've described is an unexpected one that comes about as a surprise to both client and contractor rather than something that's been planned for.

Regardless of the contracts in place, and as is often the case in practice, a certain amount of tolerance and compromise would be needed from all parties involved to ensure that all relationships involved are able to continue in a positive way.

I think it is but I am not in the same headspace as you. The client has a period where you the client does not want you to work, the actual reason is immaterial, so you don't work. Doesn't matter if it's a delay in delivery, the office is closed, it's just how the client works, whatever. They don't need you then you don't work. That's the contracted agreement.

But as I said, this is the problem with hypothetical questions. You can throw all the thoughts you want in and it gets further and further away from what is reality. It's definitely in the contract but it's very very rarely going to happen so I wouldn't spend too much time thinking about it.

[BlasterBates]

You need to check the contract, if you are paid per hour and there is no clause regarding minimum hours then basically no; it is no different than a zero hours contract, but you could try the angle that the agency/client was unreasonable and sue for damages. I don't think this is worth the effort. I would move on.

[chicane]

Thanks NLUK and Malvolio - very valid points. It just goes to highlight the hypocrisy of the legislation but I'm sure that's been covered more than adequately elsewhere.

Here's another example. You'll be expected no to work during xmas and bank hols as the client offices are closed. Exactly the same thing.

NLUK I agree with your points in general but I'm not sure that the situation I've described is "exactly the same thing" as not working on Christmas and bank holidays. The situation I've described is an unexpected one that comes about as a surprise to both client and contractor rather than something that's been planned for.

Regardless of the contracts in place, and as is often the case in practice, a certain amount of tolerance and compromise would be needed from all parties involved to ensure that all relationships involved are able to continue in a positive way.

[malvolio]

There is never an absence of MoO. All you can aim for is an irreducible minimum, as per RMC.

Putting that to one side you are still an on-demand resource, not a wage slave. You should not expect to be paid if you haven't done anything unless you have a contractual retention clause -which to my mind is unlikely

The point is, you have to negotiate the Ts&Cs, "rights" are not part of the equation.

[northernladuk]

This would certainly be a reasonable conclusion to jump to, wouldn't it! If outside IR35 has to mean the absence of MOO, then inside IR35 must mean the presence of MOO.

No it wouldn't. There could be other factors that put it inside. There could still be a ascence of MoO but no RoS etc.

The interesting thing is that the agency also has skin in the game and they're obviously interested in getting their cut of the day rate. In practice I imagine this would come down to a discussion between the contractor, agency and end client to find an arrangement that works for everybody involved.

Here's another example. You'll be expected no to work during xmas and bank hols as the client offices are closed. Exactly the same thing. You can't work because the client is off so you don't get paid. That's in your contract so yes, they can roll you off as they need to.

[chicane]

Thanks for your responses - interesting reading.

I don't think IR35 (or the Off-Payroll Working Rules, aka Chapter 10) has any bearing on this, since it's tax legislation (ITEPA), not about employment rights (in case that's what you were wondering), and umbrellas are out of scope anyway (since PAYE is being applied). It's really a contractual issue. Your umbrella contract (of employment) will state the circumstances in which you get paid.

Sadly I think you are correct from a technical standpoint. Grossly unfair, but then that applies to the entire legislation.

You've made yourself available to the end client from the agreed contract start date. Your time is committed, and as long as the delay is within the responsibility of the client, you should charge (unless there is anything to the contrary in the contract, obviously).
Being Inside IR35 there is a level of MOO, which this would point to. If they don't want to pay then they should have taken on an Outside contractor.

This would certainly be a reasonable conclusion to jump to, wouldn't it! If outside IR35 has to mean the absence of MOO, then inside IR35 must mean the presence of MOO.

I'd say this is pretty simple - if they client is willing to sign off the timesheet for that day, then do it. But, i'd also be looking for some productive activity to do for that day.

As for an obligation for the client to do so, i doubt it (but will depend on the specific contract).

The interesting thing is that the agency also has skin in the game and they're obviously interested in getting their cut of the day rate. In practice I imagine this would come down to a discussion between the contractor, agency and end client to find an arrangement that works for everybody involved.