Reply to: Can a security-cleared contract be outside IR35

[northernladuk]

Don't be stupid.

Don't hold back SE. Just say it as you think it

[SueEllen]

Surely if the role is SC then you shouldn't be letting anyone see the contract pertaining to it other than the parties directly named on it?

Don't be stupid.

The actual contract and schedule of work will have insufficient detail in it to be of use to anyone. For example the deliverables in the schedule are written in bog standard language.

In fact most secure and commercially sensitive projects use a code name or acronym to go by.

[stek]

Surely if the role is SC then you shouldn't be letting anyone see the contract pertaining to it other than the parties directly named on it?

[Qdos Contractor]

Needing SC would not determine you inside of IR35 alone. The need to have SC could make providing a substitute more difficult, but it does not make it unworkable. As previously suggested, engaging a substitute that already holds suitable SC may be enough.

Should a substitute not have relevant SC and the process need to be started from scratch, this may restrict or diminish the right of substitution but it could still be argued that personal service is not required. The likelihood of this happening in practice is low but we need to remember the right of substitution does not need to have been exercised to exist. Therefore these hypothetical situations could form part of an IR35 defence case should the issue of SC be brought up.

Jon

[Acme Thunderer]

Doesn't the SC belong to the employer/client and not you personally? So a substitute could never have SC, they'd have to be re-cleared.

Yes it does, but that is my point. If the substitute had their clearance held by a 3rd party the 3rd party doesn't have to transfer it to your client co, if they are not going to be around long enough. The client Security controller only needs to be satisfied that the 3rd party holds the clearance.

For example we needed a specialist to set up some kit over a number of days. Where the kit was meant a full SC was needed to even be in the room. I go to client security controller and say Joe Bloggs is coming to do X. Their clearance is held by ABC. Client controller talks to ABC controller who said they have a valid SC for Joe Bloggs and he comes and does the work.

Same would apply for a substitute.

[malvolio]

So, don't supply your services to the Public Sector!

Simples!

Given the generous Civil Service pensions, you soft twats should go permy!

Spod - In "supplying military services via a private sector organisation for the past 5 years" mode!

That makes even less sense than usual. Heigh ho...

[VectraMan]

If the substitute is only there for a short period of time the clearance wouldn't even need to be transferred. As long as the security controller is satisfied the clearance is valid for the time they were on site.

When I was an SC permie it took 4 months into the job before the SC came through. It probably meant not being able to go to a government site, but then I never did anyway. In fact I never used the SC for anything or ever got to look in the "classified" filing cabinet.

Doesn't the SC belong to the employer/client and not you personally? So a substitute could never have SC, they'd have to be re-cleared.

[Acme Thunderer]

. You can find some that has SC that's not lapsed and get it transferred or even have your sub put through the whole process. That's the clients problem. You can still exercise the right.
.

If the substitute is only there for a short period of time the clearance wouldn't even need to be transferred. As long as the security controller is satisfied the clearance is valid for the time they were on site.

For example when I was a permie and worked at another companies site for several months my employer at the time didn't transfer my clearance to the other company.

[Churchill]

Erm... All of mine were...

The clearance rules apply to everyone, regardless of permie or contractor, so how can they be relevant to you being a disguised employee or not? OK, they also apply to your substitute, but that doesn't impact your RoS other than by a totally reasonable requirement that they also be clearable.

From next year though, anyone taking on a PS rile, cleared or not, is going to have a serious problem with IR35. You should be a lot more concerned about that.

So, don't supply your services to the Public Sector!

Simples!

Given the generous Civil Service pensions, you soft twats should go permy!

Spod - In "supplying military services via a private sector organisation for the past 5 years" mode!

[malvolio]

Erm... All of mine were...

The clearance rules apply to everyone, regardless of permie or contractor, so how can they be relevant to you being a disguised employee or not? OK, they also apply to your substitute, but that doesn't impact your RoS other than by a totally reasonable requirement that they also be clearable.

From next year though, anyone taking on a PS rile, cleared or not, is going to have a serious problem with IR35. You should be a lot more concerned about that.

[northernladuk]

I think you can still have the option to provide a substitue. The fact the client has restrictions shouldn't mean you are immediately inside. You can find some that has SC that's not lapsed and get it transferred or even have your sub put through the whole process. That's the clients problem. You can still exercise the right.

I believe if is not tested the defence is that fully expect it to be honoured. If the client turns round and says they wouldn't then you are screwed. Sometimes it's better off not asking.

[northernladuk]

Sorry to sound thick, but what is due to change in April next year?

Changes to public sector contracting.

[OwlHoot]

Until April next year you need one of SDC, substitution or no mutual obligation to be outside ir35. I would guess that a lack of mutual obligation would be the escape route

Sorry to sound thick, but what is due to change in April next year?

[eek]

Was talking about this with a someone at clientco earlier, and it seems to me that any security-cleared contractor must be bang-to-rights inside IR35, as they obviously can't claim the right of substitution.

Even in the unlikely event they could claim as a substitute some other contractor, security-cleared to at least the same level, would any organisation demanding security clearance ever consent to a condition like that even in theory?

Or is substitution not always a completely conclusive open-and-shut indicator of being IR35-caught? (I am pretty sure it is.)

Until April next year you need one of SDC, substitution or no mutual obligation to be outside ir35. I would guess that a lack of mutual obligation would be the escape route

[OwlHoot]

The right to substitution surely belongs to your limited, not the individual.

Of course, but security clearance is obviously associated with the individual. That's the point.