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Semtex
3rd November 2016, 09:07
Retrospectively after the IR35 change comes into force?

DotasScandal
3rd November 2016, 09:58
Retrospectively after the IR35 change comes into force?

Looking at their actions of the past 2 years, what do you think?

Unix
3rd November 2016, 10:57
I don't think it will happen at all, will be delayed or a total failure and rolled back.

northernladuk
3rd November 2016, 11:01
This. Making the bloody thing stick is going to be an uphill battle for them let alone trying to go down the retrospective line so I'm not worried about it at the moment.

youngguy
3rd November 2016, 11:13
I've heard rumours of a delay .....no concrete evidence but the obvious challenges (the tool, working out how to actually make it work) are apparently rearing their head

DotasScandal
3rd November 2016, 11:21
Heard a rumor that some contractors working on that stupid IR35 "tool" have resigned over...IR35.
If true we not quite sure what level of irony this is.

LondonManc
3rd November 2016, 11:37
Make IR35 easy and go off day rate - if you're special(ised) enough, then you should be outside. Thoughts?

gables
3rd November 2016, 11:42
Make IR35 easy and go off day rate - if you're special(ised) enough, then you should be outside. Thoughts?

Hey LM, I'm having a thick moment, what do you mean? Fixed price?

LondonManc
3rd November 2016, 11:51
Hey LM, I'm having a thick moment, what do you mean? Fixed price?

I'm just saying that IR35 is meant to catch disguised employees - if you're over a certain day rate then you're a specialist brought on for a project (in theory). The only problem is that this may affect the market in other ways.

youngguy
3rd November 2016, 12:08
As we are throwing ideas around....

Why dont engagers just determine whether a role is employment, ir35 caught or specialist and advertise accordingly....understanding markets rates for each. Also they can't have their cake: employment comes with rights. Ir35 is the quasi 'working like an employee but don't wanna be so can't claim T and S' .Specialist is b2b we all know and love.

Contractual risk separates the three, which results in different taxation.

You cannot be engaged as a specialist and pay employee taxes , but you can't have rights. You also can't be engaged for longer than a certain period of time (eg two or three yrs) unless you then transfer to being ir35 caught or some form of employment.

Simplistic I know, but why make it anymore complex ?

sal
3rd November 2016, 13:15
I'm just saying that IR35 is meant to catch disguised employees - if you're over a certain day rate then you're a specialist brought on for a project (in theory). The only problem is that this may affect the market in other ways.

Wasn't IR35 brought in part to combat the sprawl highly paid execs, producers etc. in the Music/TV/Video industry working as contractors to safe on their tax bill?

gables
3rd November 2016, 13:16
I'm just saying that IR35 is meant to catch disguised employees - if you're over a certain day rate then you're a specialist brought on for a project (in theory). The only problem is that this may affect the market in other ways.

Ah I see what you mean but I have a more fundamental issue with IR35 anyway. No matter whether you're 'specialist, 'bau' or whatever in between (we could do without the snide bickering that sometimes goes on on here), we're not engaged under the same terms and conditions as employees and are therefore not employees 'disguised' or otherwise. IF we're to be taxed like employees then we should get the same rights; holidays, sickness, no need to pay employer's NI etc.

LondonManc
3rd November 2016, 13:47
Wasn't IR35 brought in part to combat the sprawl highly paid execs, producers etc. in the Music/TV/Video industry working as contractors to safe on their tax bill?


Ah I see what you mean but I have a more fundamental issue with IR35 anyway. No matter whether you're 'specialist, 'bau' or whatever in between (we could do without the snide bickering that sometimes goes on on here), we're not engaged under the same terms and conditions as employees and are therefore not employees 'disguised' or otherwise. IF we're to be taxed like employees then we should get the same rights; holidays, sickness, no need to pay employer's NI etc.

Both good points and accepted.

So, what IR35 set out to do was to stop "permies" taking the mickey on taxation, yes?

gables, totally agree with you - I've suggested in the past on here that there should be a rights ticklist that indicates if you're inside or not - paid sick, paid leave, training, inclusive pension, redundancy, MoO, etc., where you cannot have more than 20% of those rights not considered to come with standard full time employment. I was simply throwing something else out there as an option.

I prefer the rights-based list because it means that your tax position is such that it reflects that you have to manage the risk of covering those rights yourself. I also book my own accommodation and have the choice of throwing £50 or £200 a night at a hotel as I see fit (also factoring in Mrs LM's reaction to the latter!).

So, to sal's point, how should the government tackle that?

malvolio
3rd November 2016, 14:04
...

So, to sal's point, how should the government tackle that?

Recognise that being a freelance is a valid career choice.

And now work out how HMG will stop unscrupulous employers forcing people to be freelance to save on the costs of those rights and incidentals like guaranteed work and employers NICs... Not that easy, is it. :wink

BrilloPad
3rd November 2016, 14:08
Retrospection has been proven to work.

So yes they will.

gables
3rd November 2016, 14:21
Recognise that being a freelance is a valid career choice.

And now work out how HMG will stop unscrupulous employers forcing people to be freelance to save on the costs of those rights and incidentals like guaranteed work and employers NICs... Not that easy, is it. :wink

But I wouldn't have thought IR35 help the people being used as you suggest, it just penalises them no?

LondonManc
3rd November 2016, 14:25
But I wouldn't have thought IR35 help the people being used as you suggest, it just penalises them no?

Quite probably, which is why malvolio is suggesting it isn't easy to put in one set of changes without them inadvertently having an unintended consequence elsewhere.

eek
3rd November 2016, 14:42
Recognise that being a freelance is a valid career choice.

And now work out how HMG will stop unscrupulous employers forcing people to be freelance to save on the costs of those rights and incidentals like guaranteed work and employers NICs... Not that easy, is it. :wink

It's very easy when the public sector changes are rolled into the private sector.

HMRC are you really sure about that decision? Really? Here's a potential tax investigation with £100,000 in additional tax due.
Clientco thinks for 2 seconds.

So that person is inside IR35 - thought as much

MrMarkyMark
3rd November 2016, 14:46
It's very easy when the private sector changes re rolled into the private sector.

HMRC are you really sure about that decision? Really? Here's a potential tax investigation with £100,000 in additional tax due.
Clientco thinks for 2 seconds.

So that person is inside IR35 - thought as much

The thing is in certain industries they could lose out on the total tax take, finance and Insurance to take 2 examples.
They get and trouser the 20% VAT of every contractors invoice.

eek
3rd November 2016, 14:54
The thing is in certain industries they could lose out on the total tax take, finance and Insurance to take 2 examples.
They get and trouser the 20% VAT of every contractors invoice.

Different section of the revenue. IR35 relates to income tax and national insurance.

VAT is Customs and Excise and while HMRC love the powers they grabbed when the too were merged together the two sections are still very separate.

The fact they make 14.5% neat profit on contractors in the banking sector will be well beyond the intellectual level of those who created this IR35 policy.

MrMarkyMark
3rd November 2016, 14:57
Different section of the revenue. IR35 relates to income tax and national insurance.

VAT is Customs and Excise and while HMRC love the powers they grabbed when the too were merged together the two sections are still very separate.

The fact they make 14.5% neat profit on contractors in the banking sector will be well beyond the intellectual level of those who created this IR35 policy.

Oh, I realise they are different areas, it is one that should be considered though. Its pretty much all contractors in the City of London and Canary Wharf, for example.

You just know that :eyes

BoggyMcCBoggyFace
3rd November 2016, 15:02
It's very easy when the public sector changes are rolled into the private sector.

HMRC are you really sure about that decision? Really? Here's a potential tax investigation with £100,000 in additional tax due.
Clientco thinks for 2 seconds.

So that person is inside IR35 - thought as much

I'm probably being dumb here as been out of the game a while but lets say the client does say the contractor is inside of IR35 doesn't that effectively make them an employee and with rights or potential rights ?

gables
3rd November 2016, 15:15
I'm probably being dumb here as been out of the game a while but lets say the client does say the contractor is inside of IR35 doesn't that effectively make them an employee and with rights or potential rights ?

Nope don't think so, it just means the client or agent takes from 95% of the contractor invoice paye tax, ni and employer ni and then pays what's left.

eek
3rd November 2016, 15:27
I'm probably being dumb here as been out of the game a while but lets say the client does say the contractor is inside of IR35 doesn't that effectively make them an employee and with rights or potential rights ?

Nope, it's one reason why the uber employment tribunal is so important.

That showed the supervision direction and control (SDC) is enough to be granted employment rights. And the public sector IR35 changes are around supervision, direction and control

So HMRC are saying if under SDC you are caught by ir35. Employment tribunals now seem to be saying SDC means I'm due employment rights.

So my inkling is that companies including government departments are not going to be quite so happy saying yep you are under SDC and inside IR35

MrMarkyMark
3rd November 2016, 15:29
Nope, it's one reason why the uber employment tribunal is so important.

That showed the supervision direction and control (SDC) is enough to be granted employment rights. And the public sector IR35 changes are around supervision, direction and control

So HMRC are saying if under SDC you are caught by ir35. Employment tribunals now seem to be saying SDC means I'm due employment rights.

So my inkling is that companies including government departments are not going to be quite so happy saying yep you are under SDC and inside IR35

+1 Absolutely this.

eek
3rd November 2016, 15:32
Nope don't think so, it just means the client or agent takes from 95% of the contractor invoice paye tax, ni and employer ni and then pays what's left.

That 95% may not be the case anymore it's not mentioned and it could be 100% with no expenses allowed we just don't know

gables
3rd November 2016, 15:47
That 95% may not be the case anymore it's not mentioned and it could be 100% with no expenses allowed we just don't know

Indeed we don't know for certain, but presuming HMRC mean contractors will be taxed under IR35 and IR35 allows 5% I'd have thought this would stay, we're still probably going to need accountants.

Ketto
3rd November 2016, 16:05
Heard a rumor that some contractors working on that stupid IR35 "tool" have resigned over...IR35.
If true we not quite sure what level of irony this is.

How mad would you need to be to go and work for HMRC as a contractor working on the IR35 tool??

LondonManc
3rd November 2016, 16:11
Nope, it's one reason why the uber employment tribunal is so important.

That showed the supervision direction and control (SDC) is enough to be granted employment rights. And the public sector IR35 changes are around supervision, direction and control

So HMRC are saying if under SDC you are caught by ir35. Employment tribunals now seem to be saying SDC means I'm due employment rights.

So my inkling is that companies including government departments are not going to be quite so happy saying yep you are under SDC and inside IR35

So the Uber ruling could potentially mean a massive IR35 rethink?

Excellent. Perhaps they'll use a rights and privileges test to demonstrate IR35 - holiday, sickness, right of union representation, etc.

youngguy
3rd November 2016, 16:15
Both good points and accepted.

So, what IR35 set out to do was to stop "permies" taking the mickey on taxation, yes?

gables, totally agree with you - I've suggested in the past on here that there should be a rights ticklist that indicates if you're inside or not - paid sick, paid leave, training, inclusive pension, redundancy, MoO, etc., where you cannot have more than 20% of those rights not considered to come with standard full time employment. I was simply throwing something else out there as an option.

I prefer the rights-based list because it means that your tax position is such that it reflects that you have to manage the risk of covering those rights yourself. I also book my own accommodation and have the choice of throwing £50 or £200 a night at a hotel as I see fit (also factoring in Mrs LM's reaction to the latter!).

So, to sal's point, how should the government tackle that?

I think there is a lot in taxation being based on rights (and in my view risk). This allows people like us to accept the risk and forfeit the rights and it allows your Uber people to argue for rights.

Interesting of course that Gov want to say we are under the SDC yet get no rights, despite the Uber case citing SDC means they should have rights.

LondonManc
3rd November 2016, 16:16
I think there is a lot in taxation being based on rights (and in my view risk). This allows people like us to accept the risk and forfeit the rights and it allows your Uber people to argue for rights.

Interesting of course that Gov want to say we are under the SDC yet get no rights, despite the Uber case citing SDC means they should have rights.

That's the main point of my previous comment. If the courts have said SDC means rights, there's going to be a mandate across firms to make sure that working practices demonstrate no SDC wherever possible to prevent rights being applicable, surely?

MrMarkyMark
3rd November 2016, 16:19
That's the main point of my previous comment. If the courts have said SDC means rights, there's going to be a mandate across firms to make sure that working practices demonstrate no SDC wherever possible to prevent rights being applicable, surely?

Bob spuds post top of the page, below, is of particular interest when considering this:-

http://forums.contractoruk.com/future-contracting/114703-public-sector-ir35-consultation-launched-56.html

youngguy
3rd November 2016, 16:20
That's the main point of my previous comment. If the courts have said SDC means rights, there's going to be a mandate across firms to make sure that working practices demonstrate no SDC wherever possible to prevent rights being applicable, surely?

Yep, I'm there with you.

Uber is great timing actually and IPSE should be all over it (to be fair I think they keeping an eye on it)

LondonManc
3rd November 2016, 16:21
Bob spuds post top of the page, below, is of particular interest when considering this:-

http://forums.contractoruk.com/future-contracting/114703-public-sector-ir35-consultation-launched-56.html

Yes, I remember reading that. Please help - is it Hector's arse or Hector's elbow? Hector doesn't know.

eek
3rd November 2016, 17:16
So the Uber ruling could potentially mean a massive IR35 rethink?

Excellent. Perhaps they'll use a rights and privileges test to demonstrate IR35 - holiday, sickness, right of union representation, etc.

Not quite HMRC won't think that far ahead all they see is money. Unless someone is clever enough to read this.

What I expect to see if the IR35 changes are implemented will not be people appealing the IR35 ruling rather there will be (with union support at least) a number of employment tribunals to try and create a hard rule that SDC = employment rights.

Then we get the cruel but really funny bit. Having established employment rights the unions will ask why do you have contractors with employment rights being paid £60k a year when you have employees being paid £30k a year. Based on the equal pay act going back to the 80s you need to give those workers on £30k a massive pay rise.

So at the moment I actually want the IR35 psc changes to go ahead in the autumn statement. As the uber decision were it to be upheld (and it will be) has just destroyed the IR35 argument once and for all.

Meanwhile I'll wait for malvolio and others to say but but but.

eek
3rd November 2016, 17:18
Yes, I remember reading that. Please help - is it Hector's arse or Hector's elbow? Hector doesn't know.

See my note above. We will get back pay, the employees get very, very large cheques based on equal pay rules.

I really hope HMRC are reading this, it's your move and I think every option is checkmate the contractor

LondonManc
3rd November 2016, 17:41
See my note above. We will get back pay, the employees get very, very large cheques based on equal pay rules.

I really hope HMRC are reading this, it's your move and I think every option is checkmate the contractor

The only move HMRC have got to bring more tax in via the over-arching "tax on work" banner is to make sure that government contracts go to British contractors and companies rather than being outsourced and offshored to Wipro, Infosys, etc. When you see the likes of SussexSeagull out for so long, yet some of the cheap carp that you meet in work, it's clearly a case that the race to the bottom is alive and well.

youngguy
3rd November 2016, 18:28
Not quite HMRC won't think that far ahead all they see is money. Unless someone is clever enough to read this.

What I expect to see if the IR35 changes are implemented will not be people appealing the IR35 ruling rather there will be (with union support at least) a number of employment tribunals to try and create a hard rule that SDC = employment rights.

Then we get the cruel but really funny bit. Having established employment rights the unions will ask why do you have contractors with employment rights being paid £60k a year when you have employees being paid £30k a year. Based on the equal pay act going back to the 80s you need to give those workers on £30k a massive pay rise.

So at the moment I actually want the IR35 psc changes to go ahead in the autumn statement. As the uber decision were it to be upheld (and it will be) has just destroyed the IR35 argument once and for all.

Meanwhile I'll wait for malvolio and others to say but but but.

This is why I talk about rights and risk. I may be sat next to an employee and seemingly doing the same role but my risk is that of a business (insurances, contract that says you can bin me at a moment's notice). No employee has that.

On the SDC point, has Gov actually explained/justified their rationale on how PSCs can be disguised employees , yet be taxed as a business AND employee and all without employee rights?

eek
3rd November 2016, 18:31
The only move HMRC have got to bring more tax in via the over-arching "tax on work" banner is to make sure that government contracts go to British contractors and companies rather than being outsourced and offshored to Wipro, Infosys, etc. When you see the likes of SussexSeagull out for so long, yet some of the cheap carp that you meet in work, it's clearly a case that the race to the bottom is alive and well.

That argument doesn't wash for these psc IR35 changes - you have to have the right to work independently in the U.K. for this change to impact you so wipro and tcs aren't impacted except for a slight chance of getting work which otherwise is way behind schedule

malvolio
3rd November 2016, 18:52
...
On the SDC point, has Gov actually explained/justified their rationale on how PSCs can be disguised employees , yet be taxed as a business AND employee and all without employee rights?
Ermm, no, you are either taxed as an employee under IR35 or as a business if outside. The issue of employer NICs hasn't really been addressed yet but existing umbrella/agency contracts allow for that so it may simply use the same idea.

And because your status is determined by employee-related conditions of engagement, it does not mean and never has meant that you are an employee in fact.

youngguy
3rd November 2016, 18:58
Ermm, no, you are either taxed as an employee under IR35 or as a business if outside. The issue of employer NICs hasn't really been addressed yet but existing umbrella/agency contracts allow for that so it may simply use the same idea.

And because your status is determined by employee-related conditions of engagement, it does not mean and never has meant that you are an employee in fact.

My error. I should have really said treated as a business (ie liability etc).

But Gov call us disguised employees ....so we are employees ....but with different rights ? How does that work?

bobspud
3rd November 2016, 19:57
Guys I have already posted the cl1 docs in the other thread that states in law that if a government department enforces SDC on a contractor then the contractor is also pushed inside the agency working regs and gets full benefits after 12 weeks...

It's not a guideline it's an EU law they are faced with no choice....

So on one hand cl1 offers the opinion that civil servants have to maintain the responsibility for the end deliverance when using that framework, but in the adjoining guide states enforcing sdc means entitled to working rights. One needs a law change to get rid of it but the other just needs a new document version stating that sdc is not to be assumed...

So next year is either business as usual or contractors earn

An additional 30 days paid holiday plus lots of sick days...

:banana::banana:

youngguy
4th November 2016, 01:21
Guys I have already posted the cl1 docs in the other thread that states in law that if a government department enforces SDC on a contractor then the contractor is also pushed inside the agency working regs and gets full benefits after 12 weeks...

It's not a guideline it's an EU law they are faced with no choice....

So on one hand cl1 offers the opinion that civil servants have to maintain the responsibility for the end deliverance when using that framework, but in the adjoining guide states enforcing sdc means entitled to working rights. One needs a law change to get rid of it but the other just needs a new document version stating that sdc is not to be assumed...

So next year is either business as usual or contractors earn

An additional 30 days paid holiday plus lots of sick days...

:banana::banana:

Given the way it is written, is it suggesting if you are self employed you are excluded. If you are part of a managed service and controlled you are included ?

However, workers who are in business on their own account (i.e. self employed) are not within scope. Workers engaged via umbrella companies or other intermediaries will be in scope unless they are self employed. Workers working on managed service contracts (i.e. where the supplier manages or directs staff such as an outsourced IT contract or catering contract) are excluded. However, they will be within scope of the regulations if: • The hirer rather than the managed service supplier supervises and directs the staff

bobspud
4th November 2016, 02:26
Given the way it is written, is it suggesting if you are self employed you are excluded. If you are part of a managed service and controlled you are included ?

However, workers who are in business on their own account (i.e. self employed) are not within scope. Workers engaged via umbrella companies or other intermediaries will be in scope unless they are self employed. Workers working on managed service contracts (i.e. where the supplier manages or directs staff such as an outsourced IT contract or catering contract) are excluded. However, they will be within scope of the regulations if: • The hirer rather than the managed service supplier supervises and directs the staff

Which is why I say business as usual or lots of paid holiday time.
As an example my contract is for strategic and architectural consultancy deliverables through a managed services group however they go nowhere near me for months on end and I am nowhere near any civil service manager. I provide my services when and where I see fit and turn up to site only when I feel it is needed...

As well as all the contract clauses one needs the to help the outside ir35 status my working practices fit.

So in the scinario where the managed services company wants to discuss sdc I can show them I'm outside as they already know my contract clauses as they wrote them. If by some miracle they defer the concept of SDC to a non existent civil servant then my rights are enforced because a civil servant is taking control of the outcome.

Don't forget the recent Uber ruling is going to be a real tool to hit commercial entities with as the last thing they want is enfered employment status enforced on them because they insisted on SDC

youngguy
4th November 2016, 07:09
Which is why I say business as usual or lots of paid holiday time.
As an example my contract is for strategic and architectural consultancy deliverables through a managed services group however they go nowhere near me for months on end and I am nowhere near any civil service manager. I provide my services when and where I see fit and turn up to site only when I feel it is needed...

As well as all the contract clauses one needs the to help the outside ir35 status my working practices fit.

So in the scinario where the managed services company wants to discuss sdc I can show them I'm outside as they already know my contract clauses as they wrote them. If by some miracle they defer the concept of SDC to a non existent civil servant then my rights are enforced because a civil servant is taking control of the outcome.

Don't forget the recent Uber ruling is going to be a real tool to hit commercial entities with as the last thing they want is enfered employment status enforced on them because they insisted on SDC

Sure but i would have thought the majority of PSCs are not part of a managed service (although maybe that's the answer come April).

I also wonder how much explaining that would take. I remember being part of a managed service and arguing about not needing to do the BETs back in the day. We got there in the end but the dept didnt accept that willingly .

Nor being negative : I think this has legs...but as always the dept rule setters are never as clued up

flamel
4th November 2016, 08:26
How mad would you need to be to go and work for HMRC as a contractor working on the IR35 tool??

Depends what the day rate is.......

eek
4th November 2016, 09:01
Depends what the day rate is.......

If I was sure to be there in may I would :devil

MrMarkyMark
4th November 2016, 09:13
If I was sure to be there in may I would :devil

Yes Eek, but the tool is supposed to include everyone tested as inside IR35, not outside :tongue

eek
4th November 2016, 09:34
Yes Eek, but the tool is supposed to include everyone tested as inside IR35, not outside :tongue

And I would be but on a far high salary than the permanent staff. You then just need to follow my logic below.

HMRC determine that I'm inside as I am subject to supervision direction and control - as explicitly determined within the CL1 guidance (http://ccs-agreements.cabinetoffice.gov.uk/sites/default/files/contracts/4427-15%20Contingent%20Labour%20Generic%20%281%29.pdf). It also means that I'm subject to Agency Regulations after 12 weeks as shown under the CL1 agency regulations document (http://ccs-agreements.cabinetoffice.gov.uk/sites/default/files/contracts/4124-14%20AWR%20Guide.pdf)


The regulations detail
that a qualifying agency worker is entitled to the ‘same
basic working and employment conditions as she/he
would be entitled to for doing the same job had she/he
been recruited by the hirer.’

I would then have 2 unions backing an employment tribunal claim for employment rights based on the Uber SDC ruling - (its best to belt and brace this). CL1 and its rules that HMRC management were managing me should enough to win that battle.

HMRC would then have people being paid different amounts for performing the exact same job. Which opens up the decisions as shown by https://www.theguardian.com/women-in-leadership/women-leadership-blog/2014/jan/24/equal-pay-case-birmingham-city-council-fallout regarding Equal Value under the Equality Act 2010. You would have people under agency regulations being paid £120k while permanent staff would be being paid £45k for the same work. Even if that doesn't work the Agency Act is being breached in reverse and that would be enough for the unions to have a go.

Now either of the above would be a very interesting court case. And every union will be on this as they would love to double the pay for all their staff....

Personally I hope HMRC do read this forum as the above shows its game over. If they don't I suspect it is still game over but in a very different and expensive way to the one they expect....

gables
4th November 2016, 09:39
And I would be but on a far high salary than the permanent staff. You then just need to follow my logic below.

HMRC determine that I'm inside as I am subject to supervision direction and control - as explicitly determined within the CL1 guidance (http://ccs-agreements.cabinetoffice.gov.uk/sites/default/files/contracts/4427-15%20Contingent%20Labour%20Generic%20%281%29.pdf). It also means that I'm subject to Agency Regulations after 12 weeks as shown under the CL1 agency regulations document (http://ccs-agreements.cabinetoffice.gov.uk/sites/default/files/contracts/4124-14%20AWR%20Guide.pdf)



I would then have 2 unions backing an employment tribunal claim for employment rights based on the Uber SDC ruling - (its best to belt and brace this). CL1 and its rules that HMRC management were managing me should enough to win that battle.

HMRC would then have people being paid different amounts for performing the exact same job. Which opens up the decisions as shown by https://www.theguardian.com/women-in-leadership/women-leadership-blog/2014/jan/24/equal-pay-case-birmingham-city-council-fallout regarding Equal Value under the Equality Act 2010. You would have people under agency regulations being paid £120k while permanent staff would be being paid £45k for the same work.

Now the above would be a very interesting court case. And every union would be on this as they would love to double the pay for all their staff....

Personally I hope HMRC do read this forum as its game over. If they don't I suspect it is still game over but in a very different and expensive way to the one they expect....

I would imagine that rather than permie salaries going up the agency\contractor rate will go down.

eek
4th November 2016, 09:57
I would imagine that rather than permie salaries going up the agency\contractor rate will go down.

Longer term possibly but I believe thats already irrelevant and its too late. The entire point is that there are people there now under CL1 who technically are as of at the latest July:-

1) subject to supervision and control (CL1 framework guidance)
2) covered by the agency regulations (separate Government CL1 agency regulations guidance document)
3) would be able to claim employment rights based on the Uber ruling
4) being paid 2-3 times as much as an employee is.

The only unknown is getting the Equality act 2010 to kick in. But the amount of money to be played for is such that the unions will have no choice but to go for it...

And even if in the long term you pushed everyone back down to £45k using Fixed Term contracts there is £75k to play for for all affected employees while this mess was being played out and who isn't going to fight for £75-150k due to people screwing up..

youngguy
4th November 2016, 10:36
Longer term possibly but I believe thats already irrelevant and its too late. The entire point is that there are people there now under CL1 who technically are as of at the latest July:-

1) subject to supervision and control (CL1 framework guidance)
2) covered by the agency regulations (separate Government CL1 agency regulations guidance document)
3) would be able to claim employment rights based on the Uber ruling
4) being paid 2-3 times as much as an employee is.

The only unknown is getting the Equality act 2010 to kick in. But the amount of money to be played for is such that the unions will have no choice but to go for it...

And even if in the long term you pushed everyone back down to £45k using Fixed Term contracts there is £75k to play for for all affected employees while this mess was being played out and who isn't going to fight for £75-150k due to people screwing up..

I also hope IPSE are reading this. They apparently have the ear of Gov so could warn them that it may all get a bit messy and it's probably best to eject.

Just overhaul and redo IR35 rather than trying to tinker around the edges and make the best of some bad legislation

eek
4th November 2016, 10:38
I also hope IPSE are reading this. They apparently have the ear of Gov so could warn them that it may all get a bit messy and it's probably best to eject.


:rollin: But don't worry I'm off to chat to a few friends this afternoon I'm sure it will reach the correct ears rapidly - the equality act bit will suitably scare them...



Just overhaul and redo IR35 rather than trying to tinker around the edges and make the best of some bad legislation

Overhauling IR35 isn't enough - its a mess that doesn't work and never did work. There needs to be a fundamental rework on how employment, self employment, zero hour contracts and the gig economy currently work, how they need to work and what the government actually wants people to receive for working.

Governments have failed to do the above for the last 40+ years. Its well beyond the point that the current mess needs to be fixed before the gig economy and other changes make it impossible.

MrMarkyMark
4th November 2016, 11:26
As predicted....more claims for back pay etc. at Uber:smokin


https://www.theguardian.com/technology/2016/nov/04/uber-facing-hundreds-more-claims-from-drivers-for-back-pay

bobspud
4th November 2016, 22:41
As predicted....more claims for back pay etc. at Uber:smokin


https://www.theguardian.com/technology/2016/nov/04/uber-facing-hundreds-more-claims-from-drivers-for-back-pay

Good luck to them too. This was always what needed to happen. Too many companies do well out of pushing permies off the books.

I'm quite close to the sorts of people that will also shit bricks when they figure this mess out... I really don't want to wind them up too soon as they may actually manage to solve it in time, but from where I'm standing this is one huge mess that is most likely to go our way.

As for trying to get rates down, there is a reason they are as high as they are now and that is scarce supplies. I don't think this matters treatment will help that problem much.

Boomed

SueEllen
5th November 2016, 05:13
As predicted....more claims for back pay etc. at Uber:smokin


https://www.theguardian.com/technology/2016/nov/04/uber-facing-hundreds-more-claims-from-drivers-for-back-pay

Uber are doing radio ads where they claim you too can be self employed with them. These ads started after the ruling.

bobspud
5th November 2016, 06:54
Uber are doing radio ads where they claim you too can be self employed with them. These ads started after the ruling.

I think that they are under the impression that this will go their way eventually. Maybe they are just looking for the next gullible person willing to work for less than they are entitled to.

I definitely think HMRC are onto a winner for the move to punish employers rather than employees. It's always been the employer that has caused IR35 issues in my experience.

I have never met a contractor that wanted to be treated as part of the client they work with. But I know plenty of companies that treat their specialist consultants as just another permanent wage slave

eek
5th November 2016, 09:54
I think that they are under the impression that this will go their way eventually. Maybe they are just looking for the next gullible person willing to work for less than they are entitled to.


+1. The chances that Uber actually understands the nuances of the UK labour market from Holland / Silicon Valley is absolutely zero. They just assume they will win their legal battles (as they always do) not grasping that the unions have picked this battle for very particular reasons...

malvolio
5th November 2016, 10:47
I also hope IPSE are reading this. They apparently have the ear of Gov so could warn them that it may all get a bit messy and it's probably best to eject.

Just overhaul and redo IR35 rather than trying to tinker around the edges and make the best of some bad legislation

I rather hope IPSE are way ahead of you on this. Their immediate reaction is over here (https://www.ipse.co.uk/news/uber-decision-must-not-discourage-firms-engaging-self-employed)and that says they will be following this up in more detail.

Incidentally they have also recently called for a complete overhaul of the taxation system (if system isn't too strong a word...) but I don't think that's going to happen in our lifetimes.

eek
5th November 2016, 11:15
I rather hope IPSE are way ahead of you on this. Their immediate reaction is over here (https://www.ipse.co.uk/news/uber-decision-must-not-discourage-firms-engaging-self-employed)and that says they will be following this up in more detail.

Incidentally they have also recently called for a complete overhaul of the taxation system (if system isn't too strong a word...) but I don't think that's going to happen in our lifetimes.

I'm still not sure about that last paragraph and I've been thinking about it for over a week...

The simple fact is a lot of people don't want to be self employed - they just want to earn some money and have no choice but to be self employed. IPSE seem to miss the point that while many of us like being self employed, others are only there because they can't find anything else...

malvolio
5th November 2016, 11:42
I'm still not sure about that last paragraph and I've been thinking about it for over a week...

The simple fact is a lot of people don't want to be self employed - they just want to earn some money and have no choice but to be self employed. IPSE seem to miss the point that while many of us like being self employed, others are only there because they can't find anything else...
I disagree. They have been very clear about the difference between freelance worker from choice and forced incorporation by employers keen to save money or lose other overheads, and have made that clear to HMG on several occasions. That dates back to the early days of the fight against IR35, and Primarola's idiot and utterly untrue assertion that genuine businesses have nothing to fear from it. It's difficult to make a case if the other party simply refuses to listen.

It's only this last week or so that someone in Westminster seems to have finally worked out that companies are forcing people into self-employment under false pretences. Hopefully they will take the next major leap of faith and look to do something about it. The Uber decision is acting as a catalyst to something we've needed for a long time.

eek
5th November 2016, 11:45
I disagree. They have been very clear about the difference between freelance worker from choice and forced incorporation by employers keen to save money or lose other overheads, and have made that clear to HMG on several occasions. That dates back to the early days of the fight against IR35, and Primarola's idiot and utterly untrue assertion that genuine businesses have nothing to fear from it. It's difficult to make a case if the other party simply refuses to listen.

It's only this last week or so that someone in Westminster seems to have finally worked out that companies are forcing people into self-employment under false pretences. Hopefully they will take the next major leap of faith and look to do something about it. The Uber decision is acting as a catalyst to something we've needed for a long time.

Westminister is not an Employment Tribunal and its only taken a while because the unions are picking their cases very carefully....

youngguy
5th November 2016, 18:09
I rather hope IPSE are way ahead of you on this. Their immediate reaction is over here (https://www.ipse.co.uk/news/uber-decision-must-not-discourage-firms-engaging-self-employed)and that says they will be following this up in more detail.

Incidentally they have also recently called for a complete overhaul of the taxation system (if system isn't too strong a word...) but I don't think that's going to happen in our lifetimes.

Well we can't all be in the know like you, can we 😉

malvolio
5th November 2016, 18:16
Well we can't all be in the know like you, can we 😉
Yes you can...

youngguy
5th November 2016, 18:53
Yes you can...

But I don't have all your secret connection and winky behind the scenes info 😭

SueEllen
5th November 2016, 18:53
But I don't have all your secret connection and winky behind the scenes info 😭

Join IPSE and start talking to people.

mudskipper
5th November 2016, 22:38
I disagree. They have been very clear about the difference between freelance worker from choice and forced incorporation by employers keen to save money or lose other overheads, and have made that clear to HMG on several occasions.

Mal is right - segmentation is a priority for IPSE's research and policy teams.

MPwannadecentincome
6th November 2016, 11:19
The public sector organisation where my contract just got extended for the "final" time with a 5% mandatory rate cut. Take it or leave it. I have heard new roles being advertised as Fixed Term Contract. Most of the contractors here have been here for years and a couple of hundred have gone in the last 3 months. Come 2017 they will be offering FTC instead of daily rate IMO with exceptions granted only where business critical projects need to continue. Funding cutbacks will result in other projects being stopped. When I joined I was surprised at the number of people (perm and contract) who get saying to me I will be here 3+ years. I have been here a year and that is long enough, time to go back to the private sector.

bobspud
6th November 2016, 14:21
The public sector organisation where my contract just got extended for the "final" time with a 5% mandatory rate cut. Take it or leave it. I have heard new roles being advertised as Fixed Term Contract. Most of the contractors here have been here for years and a couple of hundred have gone in the last 3 months. Come 2017 they will be offering FTC instead of daily rate IMO with exceptions granted only where business critical projects need to continue. Funding cutbacks will result in other projects being stopped. When I joined I was surprised at the number of people (perm and contract) who get saying to me I will be here 3+ years. I have been here a year and that is long enough, time to go back to the private sector.

This FTC thing is just another going through the motions exercise. We also have a senior role on the books where I am. The rate is a third of my rate and they want them to be in a fairly high place of responsibility. They won't get the cv that they are looking for. So they will then shrug and hire a contractor.

I find Mals point about poor permies forced off the books concerning, if not missing the whole point of what the members needed out of the IPSE entirely. There are swathes of large companies that want contractor skill and flexibility but then enforce stupid treat the contractor like staff attitudes that could cost contractors their whole living.

We should be using the Uber ruling to beat those companies over the head. Right now is a perfect chance for IPSE to be saying treat your contractor properly or else this is what will happen to you...

DaveB
6th November 2016, 15:23
This FTC thing is just another going through the motions exercise. We also have a senior role on the books where I am. The rate is a third of my rate and they want them to be in a fairly high place of responsibility. They won't get the cv that they are looking for. So they will then shrug and hire a contractor.

I find Mals point about poor permies forced off the books concerning, if not missing the whole point of what the members needed out of the IPSE entirely. There are swathes of large companies that want contractor skill and flexibility but then enforce stupid treat the contractor like staff attitudes that could cost contractors their whole living.

We should be using the Uber ruling to beat those companies over the head. Right now is a perfect chance for IPSE to be saying treat your contractor properly or else this is what will happen to you...

You are getting it the wrong way around. The Uber ruling is more likely to result in freelancers being treated as permies, thats what the Uber drivers wanted and it's what they got in court.

As far as HMG are concerned we are the ones abusing the IR35 rules that are there to protect permies forced into self employment against their will, by not behaving like good little employees and paying our "fair share" under PAYE. What we need to be doing is pointing them at cases like UKHO and the others that will follow as an example of what will happen to them if they push through the changes.

We've already seen this happen with the aborted change in the CLOne contracts 2 years ago. Hundred of contractors refused to sign it and it quickly became apparent that if it went ahead, it would seriously impact delivery on major projects across government. Delivery and business continuity very quickly became issues for multiple departments at a senior level.

In that case Govt. were able to blame Capita for ballsing it up, this time around it's of their own making.

malvolio
6th November 2016, 15:29
You are getting it the wrong way around. The Uber ruling is more likely to result in freelancers being treated as permies, thats what the Uber drivers wanted and it's what they got in court.

As far as HMG are concerned we are the ones abusing the IR35 rules that are there to protect permies forced into self employment against their will, by not behaving like good little employees and paying our "fair share" under PAYE. What we need to be doing is pointing them at cases like UKHO and the others that will follow as an example of what will happen to them if they push through the changes.

We've already seen this happen with the aborted change in the CLOne contracts 2 years ago. Hundred of contractors refused to sign it and it quickly became apparent that if it went ahead, it would seriously impact delivery on major projects across government. Delivery and business continuity very quickly became issues for multiple departments at a senior level.

In that case Govt. were able to blame Capita for ballsing it up, this time around it's of their own making.
Totally agree. We all need clear blue water, both for taxation and employment rights, between voluntary and involuntary freelance workers. The Uber ruling actually supports that separation. If it is properly used, of course...

bobspud
7th November 2016, 09:52
You are getting it the wrong way around. The Uber ruling is more likely to result in SOME freelancers being treated as permies, thats what the Uber drivers wanted and it's what they got in court.

As far as HMG are concerned we are the ones abusing the IR35 rules that are there to protect permies forced into self employment against their will, by not behaving like good little employees and paying our "fair share" under PAYE. What we need to be doing is pointing them at cases like UKHO and the others that will follow as an example of what will happen to them if they push through the changes.

We've already seen this happen with the aborted change in the CLOne contracts 2 years ago. Hundred of contractors refused to sign it and it quickly became apparent that if it went ahead, it would seriously impact delivery on major projects across government. Delivery and business continuity very quickly became issues for multiple departments at a senior level.

In that case Govt. were able to blame Capita for ballsing it up, this time around it's of their own making.

There are a few issues. First one is that most of the time its the upper contract or the way an end client treats the contractor that HMRC use to attack the contractor for being a disguised employee. It has never hurt anyone apart from the contractor and that was plain wrong.

Lots of unwary professionals were dragged out of their safe permanent role and told a lie about being a contractor. Then stuck on a site and treated like a permanent employee.

Now that problem starts to goes away because for the first time HMRC are starting to attack the department or firm, saying hang on you told me these are business relationships yet you are treating them like workers you are at fault...

There is noting wrong with the department telling you that because you sit at a desk and are fed trouble tickets all day you are actually really a temp not a business. In fact UKHO probably had 60% of their contractors doing that, which is why they went so knee jerk.

My first big job in IT started with me being a temp with Reed working for ICL. It was long before IR35 so there was nothing stopping me being a company but the relationship was one of being a temp and so I was paid that way. Then shortly after I started about 12 weeks I was hired and enjoyed 3 more years with them before I went to do something else.

To solve the impending catastrophe in government, what needs to happen is that a further CL1 paper needs to come out stating that:

If a department hires a contractor for:

A clear project or programme
That requires a specific skill set
And that the contractor has the skills
And as such needs minimal intervention to delver to the schedule


Then the contract must be based on the deliverable not time on site and the contract will fall outside one of a controlled person.

Then we need to admit we are changing the role of contractors and draw a line in working practices and then set an amnesty for anyone not fitting the new scope and find a way to adjust the money so that lots of contractors don't suddenly go bust. At the end of the day its just a massive change control and we all know how suppliers handle them.


Totally agree. We all need clear blue water, both for taxation and employment rights, between voluntary and involuntary freelance workers. The Uber ruling actually supports that separation. If it is properly used, of course...

This is the hard part. If the IPSE has anything to take away from this is that the actual contractor pool is far smaller than what we actually have today and that lots of people gave up firm jobs believing they were contractors and actually what they were were super-temps at best.

Im not saying someone can't be a BAU person and a contractor but there needs to be a serious wake up for all those people that are being misled into believing help desks are a safe place to be a contractor in their current form.

On the bright side I am seeing plenty of opportunities in departments for freelancers to compete to take on full support of given services or systems.

eek
7th November 2016, 09:59
This is the hard part. If the IPSE has anything to take away from this is that the actual contractor pool is far smaller than what we actually have today and that lots of people gave up firm jobs believing they were contractors and actually what they were were super-temps at best.

Im not saying someone can't be a BAU person and a contractor but there needs to be a serious wake up for all those people that are being misled into believing help desks are a safe place to be a contractor in their current form.

On the bright side I am seeing plenty of opportunities in departments for freelancers to compete to take on full support of given services or systems.

But IPSE can't do that as they represent all members including those (probably the vast majority) that are just super-temps who are being well paid due to the beneficial tax arrangements of working via a PSC... Been there done that, I was accused of trying to throw people under the bus to sort out the problem (yes I am because its those people who are causing me problems).

The thing to remember is that there is a reason why I'm an expensive freelance resource. I can do things few other people can which is why I hate the current criteria. Substitution is an utter pain (few people I can trust) Supervision, Direction and Control are outside my remit once HMRC state asking questions to the end client yet I don't think anyone has really supervised me in years beyond can you make the system do x and is it done yet...

eek
7th November 2016, 10:01
Now that problem starts to goes away because for the first time HMRC are starting to attack the department or firm, saying hang on you told me these are business relationships yet you are treating them like workers you are at fault...



Note this is not HMRC doing this. Its the employment tribunals and the unions carefully cherry picking cases to take to said tribunals...

bobspud
7th November 2016, 10:15
Note this is not HMRC doing this. Its the employment tribunals and the unions carefully cherry picking cases to take to said tribunals...

But on the back of that HMRC are gearing up a team to look at firms that are using masses of off books self employed workers...

https://www.theguardian.com/technology/2016/oct/28/uber-uk-tribunal-self-employed-status

bobspud
7th November 2016, 10:21
Supervision, Direction and Control are outside my remit once HMRC state asking questions to the end client yet I don't think anyone has really supervised me in years beyond can you make the system do x and is it done yet...

This ^

What we are looking for is the right balance of risk for the client on both sides of this coin. At the moment it costs them nothing to say: "lets say they are all caught and move on..."

We want them to be thinking "if 300 contractors are all caught I owe them all Holiday and sickness pay so lets think this through and more over make sure we treat them so there is no blurred lines of distinction..."

The latter will end up with an effective and strong gig economy.

eek
7th November 2016, 10:21
But on the back of that HMRC are gearing up a team to look at firms that are using masses of off books self employed workers...

https://www.theguardian.com/technology/2016/oct/28/uber-uk-tribunal-self-employed-status

I will believe it when I see it....

MrMarkyMark
7th November 2016, 10:24
But IPSE can't do that as they represent all members including those (probably the vast majority) that are just super-temps who are being well paid due to the beneficial tax arrangements of working via a PSC... Been there done that, I was accused of trying to throw people under the bus to sort out the problem (yes I am because its those people who are causing me problems).

The thing to remember is that there is a reason why I'm an expensive freelance resource. I can do things few other people can which is why I hate the current criteria. Substitution is an utter pain (few people I can trust) Supervision, Direction and Control are outside my remit once HMRC state asking questions to the end client yet I don't think anyone has really supervised me in years beyond can you make the system do x and is it done yet...

That's my situation +1.

As a specialist it is me making recommendations, declaring risks and costs over different approaches, bringing in / recommending other people, performing the work in the way I see fit etc. etc.

bobspud
7th November 2016, 10:41
I will believe it when I see it....

Lets think this one through for a minute.

If a contractor is singled out for being a disguised employee why is it Ok for the agency to have issued them with a false document (their contract) when it is known by the agent that the overarching contract actively cancels the clauses that the contractor and their professional representation use to make their declaration of inside or outside IR35?

Why shouldn't HMRC be attacking the much easier target of the contract between the agent and the end client to show wrong doing? In fact if HMRC adopted the policy of pitying the contractor that had been misled instead of costing them their home in legal fees, they would have far more people willing to come forward and point the finger at the firms that are abusing the tax system for their advantage.

LondonManc
7th November 2016, 10:44
Good luck to them too. This was always what needed to happen. Too many companies do well out of pushing permies off the books.

I'm quite close to the sorts of people that will also tulip bricks when they figure this mess out... I really don't want to wind them up too soon as they may actually manage to solve it in time, but from where I'm standing this is one huge mess that is most likely to go our way.

As for trying to get rates down, there is a reason they are as high as they are now and that is scarce supplies. I don't think this matters treatment will help that problem much.

Boomed

Therein lies the crux of the true contractor's problem. HMG are trying to fight this battle and we generally end up as collateral damage because they cannot generally hit them without hitting us.

Any ideas?

DaveB
7th November 2016, 10:46
Lets think this one through for a minute.

If a contractor is singled out for being a disguised employee why is it Ok for the agency to have issued them with a false document (their contract) when it is known by the agent that the overarching contract actively cancels the clauses that the contractor and their professional representation use to make their declaration of inside or outside IR35?

Why shouldn't HMRC be attacking the much easier target of the contract between the agent and the end client to show wrong doing? In fact if HMRC adopted the policy of pitying the contractor that had been misled instead of costing them their home in legal fees, they would have far more people willing to come forward and point the finger at the firms that are abusing the tax system for their advantage.

Because it's not easier. Agents and Clients generally have the financial muscle to hire good lawyers to defend their position. The majority of individual contractors don't have that resource and the will to follow it through unless they have cover from the likes of IPSE to fight it for them. IPSE, despite it's membership numbers, have no-where near the majority of contractors signed up for their investigation cover so HMRC can still pick off individuals more or less at will.

malvolio
7th November 2016, 10:47
If my role is to advise a company board how to structure a service contract worth several millions a year or advise a senior programme team in an HMG Department how to make a SIAM contract actually work then it's difficult to see how SD&C can possibly apply. However, the threat is that it will, regardless, because the contract will say it must. That's what we have to watch out for.

Also you can have BaU staff who are contractors and pay them market rates, it's just that they are probably subject to SD&C and hence will be paid net of taxes. It's up to the contractor if that is a suitable commercial deal for them: for many it probably will.

Contracting will survive and eventually people will be hired under appropriate contractual terms, we just have to recognise that some of those terms may not be as favourable as they used to be. Some may find that permiedom is suddenly a lot more attractive. Others may work out that they get the big bucks by specialising and taking notice of how they operate as a business. And lots of low-grade staff and people with variable workloads will suddenly find they are allowed paid holidays and pension funds and notice periods and aren't self-employed at all and never should have been.

There will be chaos for a while but it will sort itself out - for those who work to make it work for them.

eek
7th November 2016, 10:51
Because it's not easier. Agents and Clients generally have the financial muscle to hire good lawyers to defend their position. The majority of individual contractors don't have that resource and the will to follow it through unless they have cover from the likes of IPSE to fight it for them. IPSE, despite it's membership numbers, have no-where near the majority of contractors signed up for their investigation cover so HMRC can still pick of individuals more or less at will.

And they do HMRC discover the person has IPSE membership so cancel the case and move to the next person (that is why I have IPSE membership).

It's why the uber case is so significant assuming the same result after the appeal. It changes the battle in a lot of ways:-

SDC is HMRC's chief argument
but (following Uber) SDC = worker / employment rights (and likely the latter as there will be other employees already doing the same thing)
which means its no longer in the end clients interest to say to HMRC - yep they are under SDC...

eek
7th November 2016, 10:54
If my role is to advise a company board how to structure a service contract worth several millions a year or advise a senior programme team in an HMG Department how to make a SIAM contract actually work then it's difficult to see how SD&C can possibly apply. However, the threat is that it will, regardless, because the Contingency Labour 1 contract and guidance says it does.



FTFY - which is why the public sector is going to have problems...

It's why I find the Uber ruling so :popcorn:....

bobspud
7th November 2016, 11:09
If my role is to advise a company board how to structure a service contract worth several millions a year or advise a senior programme team in an HMG Department how to make a SIAM contract actually work then it's difficult to see how SD&C can possibly apply. However, the threat is that it will, regardless, because the contract will say it must. That's what we have to watch out for.


Interestingly enough if you are doing that you would be on the wrong contract if you have a CL1 contract. you should be placed on consultancy one instead ;) Consultancy One is delivery led and used for strategy and advisory work.

Bear in mind the CL1 is guidance not law and departments are able to go back to crown commercial and point out the flaw in the advice when they find it. :)

malvolio
7th November 2016, 11:15
Interestingly enough if you are doing that you would be on the wrong contract if you have a CL1 contract. you should be placed on consultancy one instead ;) Consultancy One is delivery led and used for strategy and advisory work.

Bear in mind the CL1 is guidance not law and departments are able to go back to crown commercial and point out the flaw in the advice when they find it. :)
Absolutely. It gets a bit more complicated when you are working through an intermediary company servicing multiple clients on their behalf but I agree everyone will have to take a lot more care over the frameworks they are using for various types of role.

Then again, we know that, but an awful lot of large organisations don't...

bobspud
7th November 2016, 11:36
Absolutely. It gets a bit more complicated when you are working through an intermediary company servicing multiple clients on their behalf but I agree everyone will have to take a lot more care over the frameworks they are using for various types of role.

Then again, we know that, but an awful lot of large organisations don't...

I think the Crown Commercial team probably just need to release a little more advice as the first cut isn't what they intended to achieve. (i.e defaulting to giving blanket workers rights and holidays to every contractor by accident) They need a way to account for CL1 contractors that despite the framework are legitimately businesses in their own rights.

DaveB
7th November 2016, 11:40
I think the Crown Commercial team probably just need to release a little more advice as the first cut isn't what they intended to achieve. (i.e defaulting to giving blanket workers rights and holidays to every contractor by accident) They need a way to account for CL1 contractors that despite the framework are legitimately businesses in their own rights.

Which brings us full circle to the Business Entity Tests and independent reviews from a couple of years ago, that got hailed as the solution to the problem and then binned when it became clear tat they didn't work and actually 95% of contractors who completed them were outside IR35.

eek
7th November 2016, 11:42
I think the Crown Commercial team probably just need to release a little more advice as the first cut isn't what they intended to achieve. (i.e defaulting to giving blanket workers rights and holidays to every contractor by accident) They need a way to account for CL1 contractors that despite the framework are legitimately businesses in their own rights.

Nope they need something that isn't CL1 for when you get beyond a certain level and then to clearly define what that level is. Looking around my current clientco with 25 contractors there are only 2 specialists there (me doing x, someone else doing y). Everyone else is just a variation of a permie who they don't have as a permie because of politics...

LondonManc
7th November 2016, 11:44
Nope they need something that isn't CL1 for when you get beyond a certain level and then to clearly define what that level is. Looking around my current clientco with 25 contractors there are only 2 specialists there (me doing x, someone else doing y). Everyone else is just a variation of a permie who they don't have as a permie because of politics...

What would you define as specialist roles - a technical specialist, a subject matter expert, someone with niche skills, etc.?

I like your line of thinking on this, just wondering what a good definition would be?

SueEllen
7th November 2016, 11:48
What would you define as specialist roles - a technical specialist, a subject matter expert, someone with niche skills, etc.?

I like your line of thinking on this, just wondering what a good definition would be?

It's already been stated:



If a department hires a contractor for:

A clear project or programme
That requires a specific skill set
And that the contractor has the skills
And as such needs minimal intervention to delver to the schedule


Then the contract must be based on the deliverable not time on site and the contract will fall outside one of a controlled person.


The reason for this is what is niche or specialist in one company is not in another.

SueEllen
7th November 2016, 11:50
The government currently defines a contractor/self-employed person as:



A person is self-employed if they run their business for themselves and take responsibility for its success or failure.


link (https://www.gov.uk/employment-status/selfemployed-contractor)

eek
7th November 2016, 11:58
It's already been stated:



The reason for this is what is niche or specialist in one company is not in another.

Downside of that approach is that all consultancies I know adopt a very simple method for accepting the risk:-

Estimate the work required, double it and add 50% more for contingency.

or Time and Materials and we will keep the costs as low as possible....

Contractors are time and materials because it mitigates the risk all round and avoids using the consultancies...

Saying that I'm happy to quote for fixed price work but even that will require 1-10 days up front to define the specifications and write the proposal - and I won't do that for free...

bobspud
7th November 2016, 12:15
Which brings us full circle to the Business Entity Tests and independent reviews from a couple of years ago, that got hailed as the solution to the problem and then binned when it became clear tat they didn't work and actually 95% of contractors who completed them were outside IR35.

Thats not how I saw the entity tests. To me they were almost impossible to pass for most contractors but bore no resemblance to the way IR35 was structured. So one would fail the entity tests but then pass a contract and working practices review so that the department could say "Ah! he was high risk but we checked him out and he is actually compliant..." box is ticked move on nothing to see.

It was the hysterical stupidity of departments that basically panicked and dumped thousands of names on HMRC without merit that broke it.

bobspud
7th November 2016, 12:41
Downside of that approach is that all consultancies I know adopt a very simple method for accepting the risk:-

Estimate the work required, double it and add 50% more for contingency.

or Time and Materials and we will keep the costs as low as possible....

Contractors are time and materials because it mitigates the risk all round and avoids using the consultancies...

Saying that I'm happy to quote for fixed price work but even that will require 1-10 days up front to define the specifications and write the proposal - and I won't do that for free...

Ok I would structure it as follows. Lets make up a fictional 6 month architecture role

Phase one: Scoping and Discovery - (2 sprints) to find the current documentation/background help scope requirements and sign them off as acceptable and measurable with the client.

Delivers - Signed off credible requirements and background to the project.

Phase two High Level Design work (2 sprints) to write up proposed solutions

Delivers the option paper with high level design options and recommendation for best solution.

Phase three - Low level design - (2 sprints) details low level solution

Delivers LLD + rough data model and any other collateral documents

Phase four - break design into Epics and Stories (1 sprint)

Delivers - Project plan for client to agree.

Phase five - Delivery sprints Lots of them (2 sprints to an epic) rinse and repeat

Delivers detail design work for each of the stories and epics according to plan. (that by now has enough work to cover the rest of the year for the work)

Support and Admin 2 days a week for the duration to cope with meetings...

Roughly works out at 3 months of regular payment milestones. followed by an epic per month as a milestone till completed...

Its not hard. just takes some thought.

SueEllen
7th November 2016, 12:44
Ok I would structure it as follows. Lets make up a fictional 6 month architecture role

Phase one: Scoping and Discovery - (2 sprints) to find the current documentation/background help scope requirements and sign them off as acceptable and measurable with the client.

Delivers - Signed off credible requirements and background to the project.

Phase two High Level Design work (2 sprints) to write up proposed solutions

Delivers the option paper with high level design options and recommendation for best solution.

Phase three - Low level design - (2 sprints) details low level solution

Delivers LLD + rough data model and any other collateral documents

Phase four - break design into Epics and Stories (1 sprint)

Delivers - Project plan for client to agree.

Phase five - Delivery sprints Lots of them (2 sprints to an epic) rinse and repeat

Delivers detail design work for each of the stories and epics according to plan. (that by now has enough work to cover the rest of the year for the work)

Support and Admin 2 days a week for the duration to cope with meetings...

Roughly works out at 3 months of regular payment milestones. followed by an epic per month as a milestone till completed...

Its not hard. just takes some thought.

The problem with that is the people who do the work aren't the same as those who write the contract.

So while I can easily write my own schedule which the client staff dealing with the budget will agree with, the agency will block it.

MrMarkyMark
7th November 2016, 12:47
The problem with that is the people who do the work aren't the same as those who write the contract.

So while I can easily write my own schedule which the client staff dealing with the budget will agree with, the agency will block it.

Or just write their own BS one in (if you are lucky enough to get one in the 1st place).

LondonManc
7th November 2016, 13:24
Or just write their own BS one in (if you are lucky enough to get one in the 1st place).

It does make you wonder what their purpose is; clearly there's no sense of account management with many of them and they're simply sales people without commercial acumen.

eek
7th November 2016, 13:27
It does make you wonder what their purpose is; clearly there's no sense of account management with many of them and they're simply sales people without commercial acumen.

They are tasked to find a body, they find a body....

I thought it was obvious - if you want to move out of the body shop game you need to escape the agency....

MrMarkyMark
7th November 2016, 13:31
They are tasked to find a body, they find a body....

I thought it was obvious - if you want to move out of the body shop game you need to escape the agency....

The problem in IB is even if you are direct, you have to usually engage with the in house agency, in any case.
You then have a fight on your hands getting all the nasty clauses removed that are not relevant due to the direct engagement.
This fight delayed my start for a week this time around and required around 30 mails and the intervention of senior management to "fix" the problem.

LondonManc
7th November 2016, 13:31
They are tasked to find a body, they find a body....

I thought it was obvious - if you want to move out of the body shop game you need to escape the agency....

It is and there's a plan in its early stages of getting that into play. 5-year plan to change things significantly.

bobspud
7th November 2016, 14:27
The problem with that is the people who do the work aren't the same as those who write the contract.

So while I can easily write my own schedule which the client staff dealing with the budget will agree with, the agency will block it.

If you watch the digital Market place you will see more and more invitations to tender for work. these are what the majority of agencies are feeding off. If you are a real contractor you might consider ways of getting in the way of the Agencies and applying directly to the market place. But more importantly, even if you take the role through an agent, Digital Market place sets the deliverables and scope of the agreement so all they need to do is ask for a skilled resource to follow a five phase delivery schedule. and that is what the supplier has to fulfil.

eek
7th November 2016, 14:47
If you watch the digital Market place you will see more and more invitations to tender for work. these are what the majority of agencies are feeding off. If you are a real contractor you might consider ways of getting in the way of the Agencies and applying directly to the market place. But more importantly, even if you take the role through an agent, Digital Market place sets the deliverables and scope of the agreement so all they need to do is ask for a skilled resource to follow a five phase delivery schedule. and that is what the supplier has to fulfil.

Know anyone who knows how to fill in those Tenders? Can see a market there for someone to help and guide until people know what they are doing....

bobspud
18th November 2016, 20:50
Know anyone who knows how to fill in those Tenders? Can see a market there for someone to help and guide until people know what they are doing....

Going to go through the process myself soon I will let you know how it goes. By the way if you look at cl one page the documents have been quietly changed… They no longer say that the civil servant must hold SD&C rights in all cases.

I think we see a light at the end of the tunnel...

eek
19th November 2016, 08:22
Going to go through the process myself soon I will let you know how it goes. By the way if you look at cl one page the documents have been quietly changed… They no longer say that the civil servant must hold SD&C rights in all cases.

I think we see a light at the end of the tunnel...

I think I'm still in the wait and see model as while the framework agreement customer guidance has been updated http://ccs-agreements.cabinetoffice.gov.uk/sites/default/files/contracts/ContingentLabourONERM960-UserGuide-v11.18.11.16.docx.pdf (being rather long I haven't read all of it. It seems to regard the framework itself though which doesn't help as I can't find supervision mentioned at all).

the generic guide is still the one from September http://ccs-agreements.cabinetoffice.gov.uk/sites/default/files/contracts/4427-15%20Contingent%20Labour%20Generic%20%281%29.pdf and that version still has:-

If the department hirer is responsible for the work done, then the role is classified as Contingent Labour.

and above that:-


Supervision and direction is provided by the hirer within the department/team that hires the worker.
The hirer within the department/team that hires the worker carries the responsibility for outcomes of work, not the agency/supplier that provides the worker.
Contingent Labour generally covers the below roles:
• Interim Managers
• Specialist Contractors
• Administration and Clerical Workers
• Operational Workers


To be honest I don't think its going to make much difference to me. It's been a spur to change my business model and I'm glad about that. Just wish there were more hours in the day and more people I could get to help...

bobspud
19th November 2016, 22:31
my take on the change is the demand the the hirer MUST exercise SD&C has vanished. The original version I posted links to was a railroad to paid holidays. This new version has pulled back from that but either way we all now know that agency working rights kicks in retrospectively as soon as the department says we must be inside...

At least we all know that there will be a wind fall to pay hector even if we nicked his wallet to do it :)

mudskipper
20th November 2016, 07:35
Going to go through the process myself soon I will let you know how it goes. By the way if you look at cl one page the documents have been quietly changed… They no longer say that the civil servant must hold SD&C rights in all cases.

I think we see a light at the end of the tunnel...

After much rooting around and google-fu, I've located the old version. I don't think there is any material change in wording.

http://ccs-agreements.cabinetoffice.gov.uk/sites/default/files/contracts/4427-15%20Contingent%20Labour%20Generic.pdf (Jul 16 version)
http://ccs-agreements.cabinetoffice.gov.uk/sites/default/files/contracts/4427-15%20Contingent%20Labour%20Generic%20%281%29.pdf (Sep 16 version)

There is a new user guide dated 18 November

http://ccs-agreements.cabinetoffice.gov.uk/sites/default/files/contracts/ContingentLabourONERM960-UserGuide-v11.18.11.16.docx.pdf

Edit: Previous version http://ccs-agreements.cabinetoffice.gov.uk/sites/default/files/contracts/Contingent%20Labour%20ONE%20RM960%20-%20User%20Guide%20-%20v9.%2002.06.16%20.pdf

Again, I don't think the changes are material.

jamesbrown
20th November 2016, 08:02
I'm starting to wonder if they haven't decided to punt this. I guess the balance of probability is still that they'll go ahead, but I see nothing in the Sunday papers, and it's one of those measures (avoidance) that would often get leaked. There were two major consultations out that I'm aware of; one on the PS reforms and one on salary sacrifice. The latter is all over the papers. I know they're way behind schedule and several PS agencies have asked for this to be punted.

eek
20th November 2016, 09:08
I'm starting to wonder if they haven't decided to punt this. I guess the balance of probability is still that they'll go ahead, but I see nothing in the Sunday papers, and it's one of those measures (avoidance) that would often get leaked. There were two major consultations out that I'm aware of; one on the PS reforms and one on salary sacrifice. The latter is all over the papers. I know they're way behind schedule and several PS agencies have asked for this to be punted.

I'm not so sure. It was in the papers last weekend which didn't really feature the sacrifice changes, this week we have the sacrifice changes with few mentions of the PSC changes. Also a conversation on Friday morning didn't imply any changes - their viewpoint was that the implied Uber changes was an issue for other departments....

jamesbrown
20th November 2016, 09:27
I'm not so sure. It was in the papers last weekend which didn't really feature the sacrifice changes, this week we have the sacrifice changes with few mentions of the PSC changes. Also a conversation on Friday morning didn't imply any changes - their viewpoint was that the implied Uber changes was an issue for other departments....

I don't recall anything informed (spun) by gov't thinking last weekend(?). Anyway, as I say, the balance of probability must be that you're right, but they would normally make far more hay from an avoidance story, especially with ongoing negative stories in the press (e.g. Sadiq Khan's night tsar). Also, we know that they're way behind schedule with the online tool and the PS is completely unprepared.

youngguy
21st November 2016, 11:40
Know anyone who knows how to fill in those Tenders? Can see a market there for someone to help and guide until people know what they are doing....

The digital outcome specialist one is open to new suppliers NOW.

You have to create an account, get a DUNS number and put what services you will offer. I think they then tell you in about a month whether you have been accepted as a supplier. Assuming you have, you can then "apply" for roles. I've not done it myself so not sure how that bit of the process works,but it appears to basically be a CV.

rocktronAMP
28th November 2016, 15:32
Uber are doing radio ads where they claim you too can be self employed with them. These ads started after the ruling.

Yep .. If you are a regular sports fan throughout November, Uber have been advertising on the radio over Talksport.