Reply to: Tied to a contract

[ruth11]

OK your contract has the right wording.

If they are asking you to be on site even though they know that you don't have to be, then to my mind you are providing services. Just because you don't have to work very hard while you are there is not important.

In the same situation I would discuss it with the PM and get them to send an email saying my services are not required for a couple of days, then you have proof that the no MOO clause in the contract was genuine. But not everyone wants to have time off as much as I do right now!

Phew - you had me worried there for a minute, but I'm glad you see it the same way I do.

Thanks for the advice, I may well take that up if I want a couple of days off sometime soon. I'm pretty sure the client will be happy to do that.

[ruth11]

Being able to give "no notice" or not being able to give notice at all? (Which is how I interpreted the OP's question.)

As an outside IR35 supplier it is best if the client can terminate without giving any notice at all. Notice is for permies.

I am not sure about the implications of giving notice on the Contractor side. It is not unreasonable for the client to expect the supplier to provide notice if they intend to withdraw their services.

If the supplier is contractually unable to withdraw their services at all, hmmm, not sure. I wouldn't like to be in that position, and I don't understand why it would help with IR35.

Sorry, yes, I meant "not being able to give notice". I too can't see this as a good thing from an IR35 perspective but certain posters above were suggesting that it would be, which is why I was after clarification.

[Gonzo]

Sorry - I went off topic above.

So, would we say that being able to give NO notice is good or bad or indifferent from an IR35 perspective?

Being able to give "no notice" or not being able to give notice at all? (Which is how I interpreted the OP's question.)

As an outside IR35 supplier it is best if the client can terminate without giving any notice at all. Notice is for permies.

I am not sure about the implications of giving notice on the Contractor side. It is not unreasonable for the client to expect the supplier to provide notice if they intend to withdraw their services.

If the supplier is contractually unable to withdraw their services at all, hmmm, not sure. I wouldn't like to be in that position, and I don't understand why it would help with IR35.

[Gonzo]

My contract states that they are not obligated to find me work to do when there isn't any and they don't have to pay me if I don't do any. If they are happy to have me on site "just in case" (I do do a little bit of something each day!) and haven't told me they don't need me, is this bad for me should my working practices here be scrutinized?
It isn't my fault they want me here to do very little each day. The project has started but isn't in full swing yet and so there's not really a full day's work for me yet. But I am being paid a daily rate, so I guess if I do *something* each day, I'm entitled to be paid?

OK your contract has the right wording.

If they are asking you to be on site even though they know that you don't have to be, then to my mind you are providing services. Just because you don't have to work very hard while you are there is not important.

In the same situation I would discuss it with the PM and get them to send an email saying my services are not required for a couple of days, then you have proof that the no MOO clause in the contract was genuine. But not everyone wants to have time off as much as I do right now!

[ruth11]

Sorry - I went off topic above.

So, would we say that being able to give NO notice is good or bad or indifferent from an IR35 perspective?

[ruth11]

If the client is still paying you even though there is no work then this is MOO and would fail IR35. Whether that matters of course is whether you are a Ltd (then it does matter) or an Umbrella (then it doesn't).

My contract states that they are not obligated to find me work to do when there isn't any and they don't have to pay me if I don't do any. If they are happy to have me on site "just in case" (I do do a little bit of something each day!) and haven't told me they don't need me, is this bad for me should my working practices here be scrutinized?
It isn't my fault they want me here to do very little each day. The project has started but isn't in full swing yet and so there's not really a full day's work for me yet. But I am being paid a daily rate, so I guess if I do *something* each day, I'm entitled to be paid?

[Gonzo]

That doesn't answer the question about "No Notice" vs "Not able to give notice" though.

I don't think that MOO has anything to do with notice.

Mutuality of Obligation means that even if there is nothing to do you have to turn up and the client still has to pay you, just like an employee.

If there is no MOO, then if there is no work the client can say we don't need you for (however long) and they won't have to pay you.

If the client is still paying you even though there is no work then this is MOO and would fail IR35. Whether that matters of course is whether you are a Ltd (then it does matter) or an Umbrella (then it doesn't).

[ruth11]

My understanding of MOO is that if you have MOO the client can say "We have no work in this project for the next 2 weeks, so go and clean the toilets" and you would have too.


The same conversation without MOO would be "We have no work in this project for the next 2 weeks, so see you in two weeks"
But you don't get to invoice for those 2 weeks

That I understand, cos it's in my contract. Not that the client is taking up the option - at the moment, I'm turning up on site (or "working from home" a couple of days a week) with little or nothing to do and still getting paid.

That doesn't answer the question about "No Notice" vs "Not able to give notice" though.

[r0bly0ns]

My understanding of MOO is that if you have MOO the client can say "We have no work in this project for the next 2 weeks, so go and clean the toilets" and you would have too.


The same conversation without MOO would be "We have no work in this project for the next 2 weeks, so see you in two weeks"
But you don't get to invoice for those 2 weeks

[ruth11]

If you have a contract with no MOO, then not being able to give notice is much more of a business arrangement rather than one of employment. So, not having a notice period is a better indicator of being outside IR35 than in - as long as there is no obligation to offer or accept other work, that is.

I think MOO needs to be explained to me.

Mutuality of Obligation -in this instance you are obliged to work out the full contract without fail (ie you can't give notice), but the client is able to give you notice. I suppose that means that there is no "Mutual" obligation, only your company's obligation - is that what you're saying?

If the client wasn't able to give notice either, that would be MOO? Am I getting there now?!

[grafter]

It's through an umbrella, so no IR35 issues to be had.

The umbrella has the contract with the agent not you. So its not you that cant give notice its the umbrella company. IR35 doesnt apply to you if you are an employee of the umbrella. Who is the umbrella company? Tell the umbrella company you are dealing with an employement lawyer over your emplolyment contract with them - ie not being able to give notice and see what happens! These umbrella comapanies are a bunch of shi*es and make £**** out of people like you so get rid of them as soon as pos.

[TheFaQQer]

Understood, in this case, but for those of us who are Ltd this question is still relevant.

There's a difference between "no notice" and "not able to give notice", shirley?

No Notice - ie you can leave today and get paid for the work done and no hard feelings. That's what I would agree is very good for IR35 status.

Not able to give notice - ie you can't leave until the contract term is up sounds very much like INSIDE IR35 to me! You have no control over how long you work for these people.

Please correct me if I'm wrong?

If you have a contract with no MOO, then not being able to give notice is much more of a business arrangement rather than one of employment. So, not having a notice period is a better indicator of being outside IR35 than in - as long as there is no obligation to offer or accept other work, that is.

[b0redom]

Say:

You have a sick relative you need to go look after
You've lost your license speeding
You've been arrested so you can't come in today

No company will want to keep a hostile employee, but you're probably burning bridges...

[ruth11]

It's through an umbrella, so no IR35 issues to be had.

Understood, in this case, but for those of us who are Ltd this question is still relevant.

[TheFaQQer]

There's a difference between "no notice" and "not able to give notice", shirley?

No Notice - ie you can leave today and get paid for the work done and no hard feelings. That's what I would agree is very good for IR35 status.

Not able to give notice - ie you can't leave until the contract term is up sounds very much like INSIDE IR35 to me! You have no control over how long you work for these people.

Please correct me if I'm wrong?

It's through an umbrella, so no IR35 issues to be had.