IR35 - No MOO or client control

[malvolio]

Doesn't that apply only if ALL the contractors do this - won't HMRC pickup on the inconsistent client behaviour towards contractors?

Not really. You are only one contractor and Hector will only be looking at your contractual arrangements. If others want to screw up their status, that's their problem, but it has no impact on or relevance to your case.

[MPwannadecentincome]

Nevertheless, the test is "Direction and Control". If the client says "Do this in the best way you can" that's not D&C. If the client says "Do this , this way, to achieve this result", it is. "Do not come in on these days so that we don't have to pay you" fits the second case, not the first. Does that override the Mutuality aspect? To Hector's eyes, probably not, it is still evidence of control and the lack of pay is a desired outcome, not a consequence.

Hence, get your position in first: "I'm not in on these days and won't be billing you for them". If it happens to align to what the client wants to happen that's a bonus - but it's your decision.

And the really sensible thing to do is to book out the Christmas period well in advance. You can always agree to change that if the client needs you...

Doesn't that apply only if ALL the contractors do this - won't HMRC pickup on the inconsistent client behaviour towards contractors?

[malvolio]

Nevertheless, the test is "Direction and Control". If the client says "Do this in the best way you can" that's not D&C. If the client says "Do this , this way, to achieve this result", it is. "Do not come in on these days so that we don't have to pay you" fits the second case, not the first. Does that override the Mutuality aspect? To Hector's eyes, probably not, it is still evidence of control and the lack of pay is a desired outcome, not a consequence.

Hence, get your position in first: "I'm not in on these days and won't be billing you for them". If it happens to align to what the client wants to happen that's a bonus - but it's your decision.

And the really sensible thing to do is to book out the Christmas period well in advance. You can always agree to change that if the client needs you...

[LisaContractorUmbrella]

Hi Lisa, it was Bracken asking for an opinion and I was obliging with one

I knew that, just testing

[aoxomoxoa]

Not me guv

Then why ask for an opinion It's not enough to determine your status one way or another - it would be a pointer at best. If you are happy with your interpretation let it go

Hi Lisa, it was Bracken asking for an opinion and I was obliging with one

[LisaContractorUmbrella]

I disagree - it's not about direction. "We are telling you not to come in for these days" - in my book that's not direction and control, which is all about how you do the work and what work you're asked to do, as opposed to whether you're required on a particular day.

Then why ask for an opinion It's not enough to determine your status one way or another - it would be a pointer at best. If you are happy with your interpretation let it go

[DirtyDog]

On the contrary. They are not controlling how the op delivers work. And indeed they are demonstrating that they treat suppliers very differently to permies. The op is being told 'no work, no pay'. This is a strong indicator of genuine self-employment i.e. outside IR35.

I agree - permies have to go in and work; contractors are expressly told not to go in to work. If you were being treated as a permie then you would be told to go in.

Good for your IR35 position.

[aoxomoxoa]

It's all in the wording. "We are telling you not to come in for these days" which is Direction, as opposed to "There will be no work allocated to you for these days so we won't pay you for them", which is about Mutuality. Or, of course, you ignore their requirement and you write and say YourCo will not be providing services on those days, hope that is acceptable.

But as has been said, treating a contractor differently to a permie is a clear indicator that you aren't a disguised anything.

I disagree - it's not about direction. "We are telling you not to come in for these days" - in my book that's not direction and control, which is all about how you do the work and what work you're asked to do, as opposed to whether you're required on a particular day.

[malvolio]

It's all in the wording. "We are telling you not to come in for these days" which is Direction, as opposed to "There will be no work allocated to you for these days so we won't pay you for them", which is about Mutuality. Or, of course, you ignore their requirement and you write and say YourCo will not be providing services on those days, hope that is acceptable.

But as has been said, treating a contractor differently to a permie is a clear indicator that you aren't a disguised anything.

[northernladuk]

Client control? Telling you not to come in, awww come on lol..... There has to be a degree of control over what you do else it would be anarchy. If we call every directive from the client control it would be mayhem. It's not control at all, it's communicating a company situation and that is contractors don't work for the period. Client direction does not include communications and discussions with your client about contract issues and everything else. Is the client booking a meeting in a room across the way client direction when he makes you attend that room?!?!?!?!?

It's just standard no work no pay. It's not a slam dunk but is an indicator. It is however the way we are expected to work so there won't be too many brownie points for doing what we are supposed to do if you get my meaning. Remember bank hols are the same as this, you are available to work but the client doesn't let you so you are already taking days off at clients request.

[SueEllen]

We have something on this posted every year.

In short nothing to do with your IR35 status.

The main issue you will have is in January - will the client expect you to work longer to meet deadlines due to them closing their facilities to you?

[GB9]

I don't think it would make the difference between inside/outside but IMHO it does indicate client control as they are giving you no option; the break in the contract is enforced.

On the contrary. They are not controlling how the op delivers work. And indeed they are demonstrating that they treat suppliers very differently to permies. The op is being told 'no work, no pay'. This is a strong indicator of genuine self-employment i.e. outside IR35.

[LisaContractorUmbrella]

I can't make my mind up whether this is good or bad for IR35. Big finance client has announced a contractor blackout from 16 to 29 December (i.e. don't come to work, don't bill). Permies are welcome to come in over this period. On the one hand it sounds like a slam dunk outside of IR35 as it demonstrates no MOO / different treatment of contractors but on the other hand, it demonstrates client control. My contract allows me to work for other clients at the same time as the current one.

What do my learned fellow boarders think - good or bad for IR35. I think it's good.

B

I don't think it would make the difference between inside/outside but IMHO it does indicate client control as they are giving you no option; the break in the contract is enforced.

[bracken]

I can't make my mind up whether this is good or bad for IR35. Big finance client has announced a contractor blackout from 16 to 29 December (i.e. don't come to work, don't bill). Permies are welcome to come in over this period. On the one hand it sounds like a slam dunk outside of IR35 as it demonstrates no MOO / different treatment of contractors but on the other hand, it demonstrates client control. My contract allows me to work for other clients at the same time as the current one.

What do my learned fellow boarders think - good or bad for IR35. I think it's good.

B