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View Full Version : How to handle client process Re "requesting" WFH/Time off (IR35 warning bells)



Boomer
8th December 2018, 15:34
Hi folks,

I've been searching/reading the forums for the past couple of days and just wanted to see if anyone else has had to attempt to coach clients with their ways of talking about their 'process'.

I've started a new contract, had my QDOS IR35 review and had contract amended by the agent but I still have another client contract they are sorting out (something I protested about as well as I did not want 2 contracts).

I started officially about 3 weeks ago, a day and a half in neither of the projects were at the stage that they needed me so I told them I was going home until they were ready. So I went back at start of this last week (this I think would be a plus if ever IR35 reviewed). It's cool design agency type place, quite relaxed and fun and I like it there but they have some practices which make me feel a bit edgy with regards control and only from one person.

They have a resource manager (RM) who seems to be the person who juggles people around projects, signs off timesheets etc. who says that the process they ask people to use for WFH and "Holiday" "requests" is to send an email with at least 48 hours notice to the RM and project manager which will be "approved" - I'm quoting the words the RM uses.

This makes me edgy and I was quick to jump in and say that I felt nervous around their terminology of "requests" and "approvals" around contractors as it was straying into dangerous territory and that your plumber doesn't request or expect approval to go about their business, just that they would be unavailable. RM said "don't worry requests pretty much always get approved" - seemingly missing the point.

I really don't know if this falls under SDC or just adhering to reasonable requests made by the client?
Has anyone else had this issue - I'm sure many have? How have you handled it?

I'm wondering if I maybe need to 'have a chat' with either my agent (who doesn't really understand IR35 anyway but they did specifically say tell them of anything that may stray near IR35), the RM to voice my concerns over their process and terminology as I don't want an email trail of "requests" and "approvals" ...The client's HR or Legals to see if they can coach the RM in appropriate terminology .... or maybe I'm worrying about nothing if this is just a reasonable request!

thanks

yMyjgT
8th December 2018, 22:47
Two contracts sounds strange. I assume you're invoicing the agent, and so any additional terms they might need should be part of that contract. What on earth is going to be in it?

Check your existing contract - signing another contract directly with the client might not be allowed.
e.g. my existing one says:
"The Supplier shall procure that the Consultant shall not without the prior written consent
of the Company alone...blah blah.....and whether directly or indirectly either during the term of this
Agreement or for a period of 6 calendar months after the date of termination or expiry of
this Agreement:
(a) enter into (or approach with a view to entering into) a similar contract of service or
contract for services: "

You definitely don't want to be asking for time off, and getting things approved. You should email saying: "FYI, I'm away on these dates". But clearly you're in an environment where the people on the ground are not interested in IR35 and the differences between permies, temps, contractors inside IR35, and contractors outside IR35. So it's difficult.
In the past, I've had a friendly chat with a person who asked me to do similar, and explained my position, but that could easily backfire - "Er, sorry, but we wanted a contractor who'd be under our control - goodbye".

Hobosapien
9th December 2018, 11:30
If you're not intending or expecting to want time off during the contract for holidays or pre-planned events where client requires permie style notice and approval, then nothing to worry about.

Problem you have is that even if contract looks ok from outside IR35 perspective it's the actual working practices that will be your downfall if HMRC ever investigate and ask client for their views and they're not clued up about distinction between employees and contractor resource.

So depends on how long you envisage the contract lasting. Short 3 monther is not worth worrying about as much as one that may run for a year or more where the risk of HMRC investigating increases along with potential financial penalty if found to be inside IR35 after all.

Boomer
9th December 2018, 13:13
The contract is 6 months to start off with, and could go on for longer so I'm also planning a couple more weeks off during it to go abroad. I might try and have a chat with the particular person and explain the IR35 situation and my reasoning. I will go with sending the email that says "I'm going to be away at the end of March, I trust this fits in with the project's plans".


You're right, the trouble is, no one I have spoken to from my agent to their 'talent' team to the staff there, understand the implications of the 2 contracts or the implications of some of their terminology. Which makes it very difficult.

I've got some IR35 insurance and was looking to sign up with IPSE as well so very conscious of getting things right up front, but also not being a 'pain'.

Boomer
9th December 2018, 13:16
Two contracts sounds strange. I assume you're invoicing the agent, and so any additional terms they might need should be part of that contract. What on earth is going to be in it?

Check your existing contract - signing another contract directly with the client might not be allowed.
e.g. my existing one says:
"The Supplier shall procure that the Consultant shall not without the prior written consent
of the Company alone...blah blah.....and whether directly or indirectly either during the term of this
Agreement or for a period of 6 calendar months after the date of termination or expiry of
this Agreement:
(a) enter into (or approach with a view to entering into) a similar contract of service or
contract for services: "
.

Yes the agent is fully aware of this, and I sent out much protesting and explaining the risk that I undertake, and we are still sorting this out....3 weeks later whilst I've started, so currently I'm there just contracted to the agent. I've clearly told them that only one can take precedence and they have to decide between them which that will be (plus a load of other things of course)

Jessica@WhiteFieldTax
9th December 2018, 22:30
If you're not intending or expecting to want time off during the contract for holidays or pre-planned events where client requires permie style notice and approval, then nothing to worry about.

I’d disagree with that Hobosapien

If there was an HMRC IR35 review they’d ask about procedures for holidays rather than what actually happened. So if the client in this case wasn’t educated, they could be reporting the permi style rules.

Does it matter? If you squint and look hard, It’s a weak indicator of Mutual Obligations and/or control. Personally I don’t think it’s enough of a factor to swing the MOO or control tests, but who knows how it might fall in a tribunal situation.

Probably best to solve it even if holiday isn’t planned. I appreciate from OPs reply, this is academic as they are planning holiday anyway.

LondonManc
10th December 2018, 08:19
They have a resource manager (RM) who seems to be the person who juggles people around projects, signs off timesheets etc. who says that the process they ask people to use for WFH and "Holiday" "requests" is to send an email with at least 48 hours notice to the RM and project manager which will be "approved" - I'm quoting the words the RM uses.

This makes me edgy and I was quick to jump in and say that I felt nervous around their terminology of "requests" and "approvals" around contractors as it was straying into dangerous territory and that your plumber doesn't request or expect approval to go about their business, just that they would be unavailable. RM said "don't worry requests pretty much always get approved" - seemingly missing the point.

If they have only one way to get time off on to a system, then it's a corporate failing/restriction rather than you being treated the same.

They (the RM) are managing their projects and common decency dictates that a supplier should advise when they intend to be unavailable - I have been asked in the past to give advanced warning based on a simple double the length of time advice for time off, so two weeks off the project would be warned about four weeks in advance. Ultimately this is nothing to do with you being a perm or contractor, this is to do with them making sure that they have the ability to deliver. Unless you have a "holiday form" to be signed by a "line manager", I wouldn't worry about it. The best advice that I could give is to check what consultants have to do - generally you should be looking at being treated the same as them.

northernladuk
10th December 2018, 10:15
How big is this design agency? From what I've seen of small digital design setups they can be very IR35 unfriendly. With such a relaxed approach it could be difficult to differentiate yourself from the permies. Pretty easy in a formal office but a small fast moving setup could be a real problem with D&C and could easily look part and parcel quite quickly with their all hands to the pump/JFDI approaches. All the standups, huddles and the like they do as well, it's hard to extract yourself from the ones that are related to team building and general business ones.

Possible but I think you'd need your head screwing on. Oddly enough I would have thought booking holidays wouldn't be a problem due to the informal nature of some of these setups so if it is I'd be looking for other warning bells.



Does it matter? If you squint and look hard, It’s a weak indicator of Mutual Obligations and/or control. Personally I don’t think it’s enough of a factor to swing the MOO or control tests, but who knows how it might fall in a tribunal situation.
.

MoO is about being given work afterwards, not doing the work you've already accepted so I think he's fine with that as long as he's still doing what he was brought in to do. As I said though, I would have thought it was quite difficult to avoid extra little bits and pieces in small fast moving setups.

psychocandy
10th December 2018, 10:29
OP. Consider this....

1. Client gets contractor in.
2. Manager gets given contractor but doesnt really care that hes not a permie.
3. Contractor moans about system where manager knows where everyone is etc.
4. Manager thinks sod this I can't cope with the moaning.
5. Contractor gets canned.

b0redom
10th December 2018, 12:17
Why is this even a thing? Surely you can you can just tell the RM that you're not going to be in (for whatever reason) and then follow up with an email to say you're not going to be in the office between x and y as discussed. If they then want to approve it thats up to them?

LondonManc
10th December 2018, 12:46
OP. Consider this....

1. Client gets contractor in.
2. Manager gets given contractor but doesnt really care that hes not a permie.
3. Contractor moans about system where manager knows where everyone is etc.
4. Manager thinks sod this I can't cope with the moaning.
5. Contractor gets canned.

While I agree to an extent, there is a difference between moaning and politely pointing out differences between contractors, permies and disguised permies.

northernladuk
10th December 2018, 12:55
OP. Consider this....

1. Client gets contractor in.
2. Manager gets given contractor but doesnt really care that hes not a permie.
3. Contractor moans about system where manager knows where everyone is etc.
4. Manager thinks sod this I can't cope with the moaning.
5. Contractor gets canned.

Coming from the king of moaning about his clients and agents.....

Boomer
10th December 2018, 13:31
OP. Consider this....

1. Client gets contractor in.
2. Manager gets given contractor but doesnt really care that hes not a permie.
3. Contractor moans about system where manager knows where everyone is etc.
4. Manager thinks sod this I can't cope with the moaning.
5. Contractor gets canned.

Obviously I've considered this, but the prospect of getting walloped by HMRC makes you wonder whether it's worth it right?



Why is this even a thing? Surely you can you can just tell the RM that you're not going to be in (for whatever reason) and then follow up with an email to say you're not going to be in the office between x and y as discussed. If they then want to approve it thats up to them?

I have also tried this - saying I'm not going to be here, sending said email - but I don't know if this going to come back with RM saying "Approved" on it as that surely shows 'control'? (regardless of the fact that I don't care what they say really)
Given that I sent out a calendar invite for my holiday in Jan - which was known about at the interview, I was not expecting the invite to be Approved, then Declined and then Approved again. I felt it unnecessary to decline it at all as that implied that RM was going to come along and say I couldn't go. At which point I was fully prepared to kick off saying that I would be going and actually saying goodbye to the job.



How big is this design agency? From what I've seen of small digital design setups they can be very IR35 unfriendly. With such a relaxed approach it could be difficult to differentiate yourself from the permies. Pretty easy in a formal office but a small fast moving setup could be a real problem with D&C and could easily look part and parcel quite quickly with their all hands to the pump/JFDI approaches. All the standups, huddles and the like they do as well, it's hard to extract yourself from the ones that are related to team building and general business ones.

Possible but I think you'd need your head screwing on. Oddly enough I would have thought booking holidays wouldn't be a problem due to the informal nature of some of these setups so if it is I'd be looking for other warning bells.

It's a multinational Design agency so pretty big and growing. Not sure how to differentiate myself - I don't plan to come in in a suit for example just so I'm wearing different clothes to everyone else! As for the standups, if you're running a scrum project then you'd attend those anyway else you wouldn't have any idea what you were doing. I spent the first 5 years of my life as a consultant with Logica basically doing the same thing and even then no one ever really knew if you're a contractor or not as you try to fit in, be friendly and get on with the job at hand. People don't have signs on their heads.

Can you explain what you mean by you think I need my head screwing on?! I've been a consultant for 5 years, an independent contractor for 6 years (so I'm not fresh off the bus) I've assessed the other aspects, run through the QDOS working practices spreadsheet and the CEST tool and pretty comfortable that everything else is "fine" in as much as the murky waters allow you to try and work it out.

thanks for everyones quite mixed insights to this

northernladuk
10th December 2018, 13:43
It's a multinational Design agency so pretty big and growing. Not sure how to differentiate myself - I don't plan to come in in a suit for example just so I'm wearing different clothes to everyone else! As for the standups, if you're running a scrum project then you'd attend those anyway else you wouldn't have any idea what you were doing. I spent the first 5 years of my life as a consultant with Logica basically doing the same thing and even then no one ever really knew if you're a contractor or not as you try to fit in, be friendly and get on with the job at hand. People don't have signs on their heads.

Can you explain what you mean by you think I need my head screwing on?! I've been a consultant for 5 years, an independent contractor for 6 years (so I'm not fresh off the bus) I've assessed the other aspects, run through the QDOS working practices spreadsheet and the CEST tool and pretty comfortable that everything else is "fine" in as much as the murky waters allow you to try and work it out.

And FWIW, if you know IR35, you've done your homework and you are satisfied on the whole you are outside I personally wouldn't be that worried about a permission based system to the point I'd put my gig at risk for it. If everything else is solid I'd just blame one over zealous permie should the worst happen. Just keep lots of other evidence where you can to offset it.

thanks for everyones quite mixed insights to this

Hmm, I think I meant keep your head screwed on throughout the whole gig. I'd guess in environments like that you need to be very aware of IR35 and your own working practices to keep yourself outside and not fall in to the trap. I'm a big believer that, although time spent at a client isn't an issue, many many people will just fall in to part and parcel. It's harder to keep your working practices outside over time when human nature is to do the opposite and get lax and in with the crowd. In modern young (guessing) business like digital setups that work hard to break down old work barriers it must be even harder to stay outside.

All that said, you say it's a large multinational which kinda blows my thoughts out of the water. I was thinking about an environment at small, very agile startup type thing.

And FWIW, if you know IR35 well, all the paperwork and working practices on the whole show outside I'd not put my gig at risk over a permission based leave system. You could always blame it on one over zealous employee and not a control issue. Just try and save as much extra evidence as you go along. Save mails from other client staff where you advise you'll not be in the office for x days and just lose the emails related to permission, or something like that.