Surely the reality is that your average software development contract is INSIDE IR35?

[softwaredever]

Here's my experience of IT contracting - you work full-time in a team of other contractors/permies (reviewing each other's code, with the more experienced ones/product managers directing less experienced ones), on company equipment, at the client's site, to complete some project. In theory you can send a substitute, but you could not in reality - as they've engaged you based on your own skills and experience. You are expected to work on the project you're engaged in, and you expect there to be work for you on that project.

Surely this satisfies all the tests for being inside IR35; is the entire IT contracting industry basically on the wrong side of IR35? I'm seeking a new contract at the moment, not a single one of them seems to be outside IR35 if I apply the govt guidelines honestly.

[Old Greg]

Here's my experience of IT contracting - you work full-time in a team of other contractors/permies (reviewing each other's code, with the more experienced ones/product managers directing less experienced ones), on company equipment, at the client's site, to complete some project. In theory you can send a substitute, but you could not in reality - as they've engaged you based on your own skills and experience. You are expected to work on the project you're engaged in, and you expect there to be work for you on that project.

Surely this satisfies all the tests for being inside IR35; is the entire IT contracting industry basically on the wrong side of IR35? I'm seeking a new contract at the moment, not a single one of them seems to be outside IR35 if I apply the govt guidelines honestly.

Forget the guidelines. What is the legal position? Do all of these software developers' contracts have mutuality of obligation?

We can address direction and control next.

[softwaredever]

Forget the guidelines. What is the legal position? Do all of these software developers' contracts have mutuality of obligation?

We can address direction and control next.

It's true this is the one that I think isn't so clear cut, and I can't say I fully understand the MOO test. So are you implying that because your average IT contract is to work on a specific project, rather than to work for a specific company, there is no MOO?

[TheCyclingProgrammer]

Your experience is not everyone’s experience.

Clients tend to come to me.
They engage me because I’m an expert with a lot of experience and pay me a rate commensurate with that.
I work from my own office on my own equipment.
I work the hours I choose.
I generally bill weekly, no clock watching.
If I’m unavailable then I’m unavailable and I don’t get paid.
If the project is cancelled the contract is finished.
Clients are not obliged to offer me alternative work.
I don’t allow clients to dictate the way in which I work - I’m the expert not them.
They sign my IPSE approved contract with a strong right of substitution.

You’ll note I put that last one at the bottom because IMO whilst it’s inportant to have an IR35 friendly contract I place little weight on a RoS even though it might be enough in itself to win an IR35 case.

Even on the occasion that I do contracts where I’m working with an existing dev team, I still maintain a level of professional separation from the perms.

Yes, in this scenario I work closely as part of a team and work to fit in with the clients processes this is just the nature of software development.

I still ensure that the client doesn’t just treat me as a bum on seat. I don’t charge the rate I charge to be just another programmer. Everything in the list above still applies.

[NotAllThere]

The clue is in your question.

The reality is that your average software development contract is inside IR35. Possibly.

[softwaredever]

The clue is in your question.

The reality is that your average software development contract is inside IR35. Possibly.

In my field (web application development in London) literally every contract I see advertised or hear about from agencies is of the type I described, as are ads for mobile and native app development that I come across. My experience chimes with the OP here.

https://www.contractoruk.com/forums/...they-lose.html

Though it's true my focus may be narrow and things are different in different areas (perhaps security?).

[NotAllThere]

I'm a developer (SAP). I work on contracts where research is required to fulfil the requirements, the solution must be cross-technologies, or where a solution needs to be highly robust. I.e. not the kind of stuff that can be handled by the usual offshore numpties. (In the same way that you can't make a baby in 1 month with 9 women, you can't build a bridge across the Tyne, no matter how many toddlers you have working for you).

[Lance]

Surely the reality is that your average software development contract is INSIDE IR35?

Not just development. Service desk. 1st and 2nd line support, etc. (grunt jobs)
The key thing, as alluded to by others, is whether the contractor is brought in as a specialist or just an additional resource.
That's the spirit of the law anyway.


However, the spirit of the law is not borne out by the law itself (including the test cases). Moving the burden of determination to the client is a move to make the spirit more applicable, despite the law.

[WTFH]

The key thing, as alluded to by others, is whether the contractor is brought in as a specialist or just an additional resource.

Yes, my take on it is: A contractor is brought in to fulfil a role on a project where the client does not have the required specialist knowledge in house to do so themselves.
If you're brought in to cover maternity leave (for example) or because things are a bit busier and you're joining a team for a few weeks/months to do the same job as permanent staff are currently doing, then you're a temp. If you end up temping for more than a few months, you're effectively a permanent member of staff.

And if you're not sure, ask to see a project plan and ask what the project go live date is. If there isn't one, you're temping.

[Old Greg]

It's true this is the one that I think isn't so clear cut, and I can't say I fully understand the MOO test. So are you implying that because your average IT contract is to work on a specific project, rather than to work for a specific company, there is no MOO?

If a developer is working on a project, and that project is stopped, what will happen? Will the client find other work for them to do and pay them, or will the contractor be stood down with no further work or payment? If the latter, then the contract is outside IR35, according to my understanding. NB the contractor may see a sales opportunity to sell services to the client for another project, which should have a separate statement of work.