Contractors' Questions: Any IR35 risk to health and safety course?

Contractor’s Question: My client wishes to put contractors on a safety training course. Is the client paying for contractors to go on this course, which we’ve been told is non-expense-able, being unhelpful if we want to demonstrate an outside IR35 position?

Expert’s Answer: End clients, to conform to their own insurance requirements and as part of their internal induction process, will request that contractors who are engaged in providing their services to them receive health and safety training as part of that induction process.  This training is required in all work places and is usually offered in one form or another to anyone working on site, be they contactors or otherwise. 

While HMRC may try to include this training in their arguments under ‘control’ as a pointer towards IR35, it is an argument I would strongly resist, as conforming to Health and Safety standards is a condition which you would expect in any contract, as it is highly unlikely that any end client would engage the services of a contractor who would refuse to adhere to these standards. This viewpoint is supported in MAL Scaffolding v HMRC [2006] SpC527 where the judge stated “in particular, I do not accept the argument that the site agents could be regarded as carrying out the control function over the workers of MAL Scaffolding, the site agents have independent statutory safety obligations that apply to employee and self-employed worker alike”.

As such, in my opinion, conforming to end-client health and safety guidelines has little bearing on IR35 and its three mainstays; personal service, control and mutuality of obligations.  

The expert was former HMRC Inspector Nigel Nordone, a senior tax consultant at IR35 protection specialists Abbey Tax.

Thursday 8th December 2016