Reply to: IR35 and interviews

[jamesbrown]

Your technical knowledge is what you are being paid for

If that were true, then the SoW would say "we are paying you for your technical knowledge and we can direct and control your daily tasks as we see fit". I doubt that is true; I hope for the OP it isn't true. I think they are (or should be) paying the OP for the tasks identified in the SoW, the delivery of which relies on the OP's skillset.

But, yeah, sure, there's always a balance to be struck. Don't let IR35 wag the dog. You do want happy customers and repeat business and all legitimate businesses aim for that. Like I said earlier, it's easy to miss the wood for the trees w/r to IR35 - just keep on the right side of the big ticket items, which you will be doing anyway in a B2B relationship.

[jamesbrown]

So my options are:

1. Update the contract to include this.
2. Do this for free as a favour to the client outside of the contract and not charge for it.

Which option is better do you think for IR35? I am not bothered about the money.

As I said earlier, I don't think either is massively important w/r to IR35 and I don't think the money makes any difference because it's about your working practices, but I wouldn't do substantive things outwith the SoW because it's a slippery slope. You will have to make that judgement ("substantial", "outwith") yourself. But I also don't think (2) is mitigation w/r to IR35 if that's what you're asking.

[Paralytic]

yes it’s your opportunity to weed out all the superstars and hire the dross to protect your income stream

This isn't the thread for you to be looking for a new role.

[GhostofTarbera]

Thoughts? If a client wants my opinion re new hires how does that sit with the IR35 legislation? To be honest same goes for 'helping' juniors with work. I am here to deliver software - nothing else is written into my contract. Would you refuse?

yes it’s your opportunity to weed out all the superstars and hire the dross to protect your income stream

[cannon999]

Must admit I'm not totally in agreement with JB here. Your technical knowledge is what you are being paid for so to apply it to the product you are working on and the ongoing support of it isn't that far apart. If the brief is to deliver X in to BAU then it is easily arguable this could involve resourcing for that BAU phase. Dropping a working technical solution isn't delivering a product in to BAU. I guess that is because I'm a service operations guy so finishing a bit of code isn't delivering a service to a customer.

My question would be how much time/effort is required to do this? Will it be a noteable time eater or are you just spending a couple of hours sifting CV's and interviewing to give the client a recommendation.

I think either option above is perfectly acceptable. A line in the SOW saying something like 'Consultancy activities to enable delivery of product in to service' will cover this and many other potential activities.

If it's a one off thing that won't take a lot of time then I think option 2 is also perfectly acceptable but what do you mean by free outside contract? If that means you provide eight hours work and give them three more hours for free then I'd have to think about it. If you deliver five hours in a day and spend the rest of the day doing this activity and still bill for a day then yes fine.

Option 1 is the IR35 safe route but chances of a case coming up because you've interviewed someone is next to zero and carrying out one simple activity such as this has never been brought up in a case so at worst is a very minor flag. If you are being as cautious as you are about IR35 I'd say this activity becomes almost irrelevant to any IR35 risks.

But as has been mentioned already, if the client has determined you outside then it doesn't matter. It's their risk anyway.

Small company - determination lies with me.

It's minimal effort really. By free I mean I don't invoice for any of this 'extra' time at all. I don't have a working day currently so I work whenever I want. So the time I spend on doing this I simply wouldn't bill for it.

Thank you for your advice.

[northernladuk]

So my options are:

1. Update the contract to include this.
2. Do this for free as a favour to the client outside of the contract and not charge for it.

Which option is better do you think for IR35? I am not bothered about the money.

Must admit I'm not totally in agreement with JB here. Your technical knowledge is what you are being paid for so to apply it to the product you are working on and the ongoing support of it isn't that far apart. If the brief is to deliver X in to BAU then it is easily arguable this could involve resourcing for that BAU phase. Dropping a working technical solution isn't delivering a product in to BAU. I guess that is because I'm a service operations guy so finishing a bit of code isn't delivering a service to a customer.

My question would be how much time/effort is required to do this? Will it be a noteable time eater or are you just spending a couple of hours sifting CV's and interviewing to give the client a recommendation.

I think either option above is perfectly acceptable. A line in the SOW saying something like 'Consultancy activities to enable delivery of product in to service' will cover this and many other potential activities.

If it's a one off thing that won't take a lot of time then I think option 2 is also perfectly acceptable but what do you mean by free outside contract? If that means you provide eight hours work and give them three more hours for free then I'd have to think about it. If you deliver five hours in a day and spend the rest of the day doing this activity and still bill for a day then yes fine.

Option 1 is the IR35 safe route but chances of a case coming up because you've interviewed someone is next to zero and carrying out one simple activity such as this has never been brought up in a case so at worst is a very minor flag. If you are being as cautious as you are about IR35 I'd say this activity becomes almost irrelevant to any IR35 risks.

But as has been mentioned already, if the client has determined you outside then it doesn't matter. It's their risk anyway.

[cannon999]

Yeah, I would avoid that if it isn't captured in your SoW (leniently interpreted is OK) because that is a substantive effort, not just an opinion. Always try to help the customer, but always stick within the broad outlines of your SoW, else get a mod to update the SoW, assuming it is acceptable to you.

So my options are:

1. Update the contract to include this.
2. Do this for free as a favour to the client outside of the contract and not charge for it.

Which option is better do you think for IR35? I am not bothered about the money.

[jamesbrown]

Yes that is exactly what the client wants. My technical knowledge is required to assess the candidates.

Yeah, I would avoid that if it isn't captured in your SoW (leniently interpreted is OK) because that is a substantive effort, not just an opinion. Always try to help the customer, but always stick within the broad outlines of your SoW, else get a mod to update the SoW, assuming it is acceptable to you.

[cannon999]

Oh and, to be clear, if the title was a pointer to your participation in the selection process itself (reviewing CVs, interviewing short-listed candidates), then don't do that.

Yes that is exactly what the client wants. My technical knowledge is required to assess the candidates.

[Lance]

Thoughts? If a client wants my opinion re new hires how does that sit with the IR35 legislation? To be honest same goes for 'helping' juniors with work. I am here to deliver software - nothing else is written into my contract. Would you refuse?

Does your SoW include a deliverable that matches what they're asking? Sounds like it doesn't so are you going to do this for free? Or are you going to charge them as software delivery for something that isn't? And if the latter are they happy with that?
I always have handover in my SoWs and handover may include helping the client find suitable resource.

Anyway..... If they have made an outside determination for you, why do you care? It's their problem.

[northernladuk]

Thoughts? If a client wants my opinion re new hires how does that sit with the IR35 legislation? To be honest same goes for 'helping' juniors with work. I am here to deliver software - nothing else is written into my contract. Would you refuse?

To me it depends on the situation and expectation of the client. I have absolutely no qualms helping with interviews and mentoring. I actually enjoy both it so would find it very hard not to do. If done off my own back and I have a choice I don't mind doing it. I'm technically consulting with the client to offer my expertise to get them to an end point so easily arguable in most cases. I would draw the line at hires that have absolutely zero to do with what I am doing and train staff from other areas on knowledge I am not using in the gig. That's providing a training service, helping within my scope of work is consultancy within the scope of the SOW.

Every human interaction can be classed as helping. If someone asks you how to get cold water out the machine are you stepping outside IR35? Major suppliers mentor client staff and help so it's not of the world of inside only. It's business which is still outside IR35.

There is also the point that saying no makes you look unhelpful so is not good for business in the long run.

If you don't like doing it then you have a right to say it's not part of the work, if you enjoy it I think there is plenty of wiggle room for doing it as part of the work you are delivering. In most cases I'd get on with it and not worry about IR35.

That said, if you were a newbie that didn't have a clue about IR35 I'd say don't do it just because it needs a bit of nouse to know why you are doing and and what is right/wrong to keep on the right side of IR35. You aren't a newbie and are more than aware so I'd say just keep your eyes open but get on with it.

[northernladuk]

Have you actually read what you have written here? What kind of consultancy would focus on not being needed by the client in the future? I don't want useless IR35 bumper sticker quotes.

There is a line between making yourself not needed and consulting with the client to grow. It's not as simple as focus on not being needed. I think you are taking Simons comment far too literally. It's a very long discussion to explain the two but if you flip it to the other extreme if your focus is on ringfencing the work to make yourself invaluable you could be pushing yourself in to an inside position by becoming part and parcel. Again.. another comment that could be taken far too literally but it's still a position to consider.

Many factors to that comment to consider especially with regard to what you are delivering. As an exmaple, when I do a service transition piece for the client I'll deliver templates and a process. You could argue that helps them get someone else to do the work in the future but I believe it's part of good delivery. Many suppliers will implement processes and templates that can then be reused so you've effectively help them build a function they can use in the future. I don't worry about it as they will still need good transition resources in the future so don't see it as putting myself out of work.
If you are a coder then the path to not being needed by the client is very different.

So I wouldn't take the comment as literally as he's put it and think about it in terms of what you deliver. It might be that this is never the case for you but it certainly is for me (to some extent)

[courtg9000]

Depends are you a bum on seat / body shop type of contractor, or are you a consultancy who's focus is to get the client to be in a position to not need you in the future.

Unless the client is a right snotter you want your client to need your consultancy in the future. That's called repeat business. That's an indicator to new clients that your consultancy is actually any good. What your consultancy dosen't want is a BoS extension.

If the client is of course a right snotter unless you are that desperate for the dosh, you want to be out of there sharpish.

[jamesbrown]

Oh and, to be clear, if the title was a pointer to your participation in the selection process itself (reviewing CVs, interviewing short-listed candidates), then don't do that.

[jamesbrown]

I wouldn't overthink this. Providing an opinion to the client on the basis of the expertise you were hired to provide is not an IR35 pointer. If you were being asked to engage in a substantive selection process, and that wasn't part of your statement of work then, sure, that is more problematic w/r to D&C, but offering a straightforward opinion is a non-issue. It's easy to not see the wood for the trees w/r to IR35. Just stay on the right side of (as many as you can) of the major factors of RoS, MoO and D&C. Obviously, this assumes that YourCo is responsible and liable, not the supply chain above you.