Reply to: Boom!

[d000hg]

Anyhow, how about you explain why it's not IR35 based on the actual way you (expect to) work? Will you refuse to do work you don't like, come in the hours/days you want, and happily "not come in next week, not much to do"? Or will you be in 9-5 doing what they ask?

[d000hg]

Did the original advert mention contract to perm? Did any correspondence with the agency?

[northernladuk]

Alternatively, keep plugging your ears, say lalalalalal loudly enough (maybe add a "can't hear you!") and keep convincing yourself that the contract will save you from being caught by IR35..[/U][/B]

LOL that sums it up for me. I have wasted more than enough time trying to enlighten our esteemed colleague who will not accept the feedback so I am out of here....

Saying that... Just want to point out

The client is not obligated to offer me a permie role at the end of the 3 month period,

They are not obliged but the fact they are capable of this option tells you (or it should) that this role is deemed and managed as a permie one. It is the role/working conditions you are defending not the intentions of the client or you.

Am gone..... woooooooooosh.....

[The Wikir Man]

If the client decides to tell HMRC something that was not agreed in writing, then they will be open to legal issues (Not that I would be in a financial position to sue).

BUT - how do you know what has been agreed in writing between the agency and the client?

That's one of the joys of defending an IR35 investigation - it is based on the actual working conditions, which may or may not be inferred from a contract that you will never see.

If the actuality of the working conditions, for example if the client says "oh, but we'd never allow him to use that substitution clause", differs from the written contract, then you are in trouble. So, to go back how ever many posts, if the client views you as an employee, unless you can prove conclusively that you are not an employee, then you will find it incredibly difficult to defend your position with regards to IR35.

[The Wikir Man]

So what you are saying is that the clauses in the contract that effectively says the opposite to what you are saying is worthless then? If so, the agency and the client have shot themselves in their respective feet by allowing such clauses to be entered into the contract between client and agency, and agency and myself.

The client is not obligated to offer me a permie role at the end of the 3 month period, nor are they obligated to offer me any work during the 3 months. They can terminate my contract with 1 weeks notice, and I can terminate with 4 weeks (but I may get the later removed).

On a slight diversional note, your argument could be applied to all contractors, regardless of whether the discussion of going perm role at the end of the term or not was discussed at interview stage.

As long as there is no mention of a perm role being offered in the contract, I will assume that there is no perm role being offered at the end of the contract term (assuming that I get to the end of the contract term).

If the client decides to tell HMRC something that was not agreed in writing, then they will be open to legal issues (Not that I would be in a financial position to sue).

If there is a difference in contract terms between the client-agency contract and the agency-contractor contract, that is where the problem potentially lies.

In the Dragonfly case, the case was lost on the client changing their mind at the last minute about what to tell HMRC about the actual working arangement.

If there is any chance that the working arrangement is dubious, then you should make sure that the situation is clarified.

Alternatively, keep plugging your ears, say lalalalalal loudly enough (maybe add a "can't hear you!") and keep convincing yourself that the contract will save you from being caught by IR35.

Good luck.

[pmeswani]

They aren't shooting themselves in the foot, they are shooting you in the head.

HMRC: Would you allow him to pick and choose when he worked?
BSB HR: No.
HMRC: Hmmm. Would you allow him to send a replacement instead of him personally?
BSB HR: Well according to our records, the position is meant to go permanent at some stage, so no.
or
BSB HR: No - he's an employee

It has no impact on BSkyB or their HR department to reflect what they regard as the situation to HMRC. If they believe that there is a chance that you are a permie, and they tell HMRC that that is how they think the relationship is, then you are screwed.

Best bet would be to put in writing your understanding of the exact contractual relationship and get them to sign that as soon as you arrive, just in case.

So what you are saying is that the clauses in the contract that effectively says the opposite to what you are saying is worthless then? If so, the agency and the client have shot themselves in their respective feet by allowing such clauses to be entered into the contract between client and agency, and agency and myself.

The client is not obligated to offer me a permie role at the end of the 3 month period, nor are they obligated to offer me any work during the 3 months. They can terminate my contract with 1 weeks notice, and I can terminate with 4 weeks (but I may get the later removed).

On a slight diversional note, your argument could be applied to all contractors, regardless of whether the discussion of going perm role at the end of the term or not was discussed at interview stage.

As long as there is no mention of a perm role being offered in the contract, I will assume that there is no perm role being offered at the end of the contract term (assuming that I get to the end of the contract term).

If the client decides to tell HMRC something that was not agreed in writing, then they will be open to legal issues (Not that I would be in a financial position to sue).

[facboy]

agree...i don't see why HR would care one jot about answering questions carefully. what is the downside to them?

[The Wikir Man]

Yep I agree with that statement. But at the same time, I don't think they would shoot themselves in the foot.

They aren't shooting themselves in the foot, they are shooting you in the head.

HMRC: Would you allow him to pick and choose when he worked?
BSB HR: No.
HMRC: Hmmm. Would you allow him to send a replacement instead of him personally?
BSB HR: Well according to our records, the position is meant to go permanent at some stage, so no.
or
BSB HR: No - he's an employee

It has no impact on BSkyB or their HR department to reflect what they regard as the situation to HMRC. If they believe that there is a chance that you are a permie, and they tell HMRC that that is how they think the relationship is, then you are screwed.

Best bet would be to put in writing your understanding of the exact contractual relationship and get them to sign that as soon as you arrive, just in case.

[AngelOfTheNorth]

You are assuming that HR are aware of the discussion between the Hiring manager and myself.

Because I advised the client I would consider going perm, it doesn't mean that I will be going perm at the end of the contract term. For HR to say something that is not factually correct would not be in their best interest.

I think you give HR way too much credit and you seem to be relying an awful lot on outside people keeping schtum to protect your IR35 status which you know is inside otherwise you wouldnt have asked so many questions about it.

I dont care if you do claim your outside, but so long as you realise its fraud and have thought of what youre going to say if you get caught. Thats all.

[pmeswani]

I don't get the bit where you dont think they would shoot themselves in the foot. Why would they care if they said they took you on as a contractor with a view to going permanent?

You are assuming that HR are aware of the discussion between the Hiring manager and myself.

Because I advised the client I would consider going perm, it doesn't mean that I will be going perm at the end of the contract term. For HR to say something that is not factually correct would not be in their best interest.

[AngelOfTheNorth]

Yep I agree with that statement. But at the same time, I don't think they would shoot themselves in the foot.

I don't get the bit where you dont think they would shoot themselves in the foot. Why would they care if they said they took you on as a contractor with a view to going permanent?

[AngelOfTheNorth]

As I am not based at the other site (The one near Tesco's), I won't lose any sleep regarding my commute to that site.

.

Well I was and trust me .... twas not the leisurely commute you assume it is.

[pmeswani]

You're asuming HR have a clue. My experience was different.

Yep I agree with that statement. But at the same time, I don't think they would shoot themselves in the foot.

[pmeswani]

Ive already said how much Sky sucked to work with, but nobody wanted to listen. Well more fool them ....... especially when they realise the commute they are going to have to endure each day. A more inaccessible place in 'London' Ive yet to encounter. You can't walk there, theres virtually no public transport around. You might be able to rely on their shuttle bus service if you can get a seat ....... you drive there and its a nightmare.

And thats all before youve even sat in your seat ready to work!

I don't know which site you worked at, but the site I will be located at, there are 4 or 5 stations in reasonable walking distance to and from the site. Also, there are 3 or 4 buses that go within 100 metres of the site. The other site, based on http://corporate.sky.com/documents/p...y_osterley.pdf, has 2 train stations (Osterley underground and Syon Lane main line) and is in reasonable walking distance from bus stops that serve Boston Manor.

As I am not based at the other site (The one near Tesco's), I won't lose any sleep regarding my commute to that site.

I am sure a lot of people will have negative things to say about every company they have worked for, so until I have worked for them, I will hold back on forming my own judgement.

[b0redom]

You're asuming HR have a clue. My experience was different.