Planning an MVL - preparation

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Originally Posted by northernladuk

You've been doing an enduring role that a permie should be doing. That's exactly what IR35 is all about so I'd say you are wrong. Most of the articles talk about perm to contract and the Friday to Monday rule but the converse is true (but not as obvious). IR35 investigations try and find if you've been working as a disguised employee and claw back the tax you should have been paying. To switch remuneration methods but the work doesn't change will indicate to HMRC you've been a disguised permie up to now.

It shouldn't be too hard if your working practices are slightly different and you've been working to a very well defined Statement of Work previously but now you can be directed and controlled.
If your old gig just had a role title and you took on work as the client wanted you could be in a difficult situation.

Hope you've got IR35 insurance and if so keep. It going for a full year of your LTD after swapping.

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Perhaps I've always misunderstood IR35, but it says nothing about who should be doing a role. It's only interested in whether you are in fact a hidden employee and not an independent.

Now, the role won't change, but many things that mean I'm not currently an employee will change. There's the obvious like the right to substitution, holiday pay, sick pay, there will be objectives and reviews, company meetings to which I'd become invited, I'd have to ask to book holiday instead of informing that I won't be there, amount of time absent will be limited and monitored, etc, etc... These are the indicators that I've been lead to believe differentiate between in/out of IR35.

Still, keeping the IR35 investigation insurance running isn't a bad idea.

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Originally Posted by Cyc1one

Perhaps I've always misunderstood IR35, but it says nothing about who should be doing a role. It's only interested in whether you are in fact a hidden employee and not an independent.

Now, the role won't change, but many things that mean I'm not currently an employee will change. There's the obvious like the right to substitution, holiday pay, sick pay, there will be objectives and reviews, company meetings to which I'd become invited, I'd have to ask to book holiday instead of informing that I won't be there, amount of time absent will be limited and monitored, etc, etc... These are the indicators that I've been lead to believe differentiate between in/out of IR35.

Still, keeping the IR35 investigation insurance running isn't a bad idea.

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Just the fact you are calling it a role is bad. Contractors don't fill roles.

But if you've got all those in that list then you should be OK. They are minor flags but should be enough to have a case. Its your direction and control and MoO that would really clear you. As long as you've not been letting them do that and you have paperwork such as a SoW to back it up then you should have enough.

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Originally Posted by northernladuk

Just the fact you are calling it a role is bad. Contractors don't fill roles.

But if you've got all those in that list then you should be OK. They are minor flags but should be enough to have a case. Its your direction and control and MoO that would really clear you. As long as you've not been letting them do that and you have paperwork such as a SoW to back it up then you should have enough.

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Interesting point about the MoO, I'm not sure if this is relevant, but maybe.
They periodically and without warning declare a "furlough" for some or all contractors. Basically to hit budget targets they just inform you that next month there is only one week of work available and none for the remaining three weeks. Obviously that's not something they can do to permies and suggests that there is no MoO on their side to provide the service company with regular work.
It's sort of the reverse of me informing them when I'll take holiday and not feeling obliged to stick to any 5 or 6 weeks that permies might be allocated. Except they're much less polite about it and don't give much notice!

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Originally Posted by Cyc1one

Interesting point about the MoO, I'm not sure if this is relevant, but maybe.
They periodically and without warning declare a "furlough" for some or all contractors. Basically to hit budget targets they just inform you that next month there is only one week of work available and none for the remaining three weeks. Obviously that's not something they can do to permies and suggests that there is no MoO on their side to provide the service company with regular work.
It's sort of the reverse of me informing them when I'll take holiday and not feeling obliged to stick to any 5 or 6 weeks that permies might be allocated. Except they're much less polite about it and don't give much notice!

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Those are certainly big plus's in your favour so yes, it appears you are probably in the clear. Just a couple of points to be a pedant seems we are discussing it though.

MoO is not about taking time off whilst doing the role. There is a form of obligation to do the work in the contract/SoW that you've agreed to do. Them asking you not to come in to do work is more part of the T&M work we do. It's the same as you saying you aren't available to work (you don't ask a client for holidays really, you are just unavailable to work). MoO is about giving you more work once what you contracted for is complete. If you were a PM and they just gave you another project straight after and expected you to do it and you accepted it would be an indication of MoO. This is why a clear SoW for every piece of work is important.

Now if you are contracted in to a role as you indicated before then it's possible the working practices with regard to giving the next project after you've completed the current one have not changed and that's where you might have an issue. But as you say, furloughs is a financial risk that generally does not exist to permies. There is also D&C to think about in a situation like this.... but I'm sure you aren't working like this :tongue