Immediate Notice + IR35?

**malvolio** · 14 May 2007, 08:39

For about the eighth time this year, no notice to you means no MOO means no employee-like relationship means no IR35 (or to be precise, any decent advocate can then show you to be outside IR35). Notice is for permies.

**Bootlaces** · 14 May 2007, 09:13

Originally posted by malvolio

For about the eighth time this year, no notice to you means no MOO means no employee-like relationship means no IR35 (or to be precise, any decent advocate can then show you to be outside IR35). Notice is for permies.

Thank you for your 8th reply :-)

-=david=-

**rootsnall** · 14 May 2007, 09:53

Originally posted by malvolio

For about the eighth time this year, no notice to you means no MOO means no employee-like relationship means no IR35 (or to be precise, any decent advocate can then show you to be outside IR35). Notice is for permies.

The power is going to your head already !

One question, in your experience of 'real' cases has a single non IR35 pointer been enough to overide other 'employee like' pointers. ie. no MOO, no IR35 fullstop ?

**pippo** · 14 May 2007, 10:03

Originally posted by rootsnall

One question, in your experience of 'real' cases has a single non IR35 pointer been enough to overide other 'employee like' pointers. ie. no MOO, no IR35 fullstop ?

I agree with rootsnall.

I repeat my stance, that I had previously expressed in this thread last week http://forums.contractoruk.com/threadnav17056-2-10.html

If there's an agency involved, as i think in this case, then i would be very surprised that an agency can legally tie a contractor into a 6-month contract. It would be useful to hear a legal expert opinion on this matter. If the client can decide from one day to the next to terminate the contract so should the contractor! This can still be a B2B relationship, but a fair one, not a relationship where you have one party dictating all the rules. Any business (be it a small, medium or big business) should try and have contracts that protect its interests and/or minimize its risks.

Also there're a number of us fellow contractors in this forum that are working through a PAYE umbrella company or even with their own Ltd company but inside IR35. In these situations, having such unfair and risky clauses in the contracts does not make sense: they should be avoided at any cost because they don't provide any benefits, they are a benefit only for the agency or end client!

For those of us that work through a Ltd company but outside IR35, then yes one would want to show a certain element of business and financial risks in the contracts. But even in these situations these clauses are not needed in my opinion, as the risk is too high. There're plenty of other factors in the real working relationship and in the contract clauses that are used to determine the IR35 status.

**malvolio** · 14 May 2007, 10:19

Of course there is no single magic bullet, and cases are invariably won on the basis of a mumber of factors (mostly, on recent comments, concerning direction and control for some reason). However, zero notice is a strong indicator away from IR35, as is a reasonably unfettered substitution clause. I do not accept that you should take on an unfavourable IR35 clause for comfort's sake; that says to me that you do not really understand the client/supplier relationship fully - for one thing, it is not a meeting of equals, only one side has the money to pay for it.

However if you have decided you are inside IR35 then by all means insist on a notice period: but will you also insist on paid holidays, training and SSP?? You can't have it both ways you are either a contractor or some kind of employee, and you have to decide which one.

**rootsnall** · 14 May 2007, 10:53

I'd happily drop the notice period from my contracts if it meant I was then well on the way to being outside IR35 in any legal argument. I'm trying to work out if it's worth the effort of having it removed from my next contract, hence the question. The answer seems to be it will help.

I think the 'direction and control' is a lot more tricky to manipulate into being IR35 friendly. My 'working practice' as a contractor has always been to do what the client wants ( ie. they have control -thats why they pay you ! ) and you are performing tasks that a permie would do but on a short term basis usually as part of a project. All the contractors I have ever come across work in the same way even if they may think otherwise.

**malvolio** · 14 May 2007, 11:20

You can work in a front-line support group and not have D&C. If the client sets the objective but does not dictate how you deliver it, if you have to be at work for certain times because of the nature of the job, if you cannot have remote access for security reasons, if you advise your client you are taking time off without seeking permission - none of these represent D&C.

The contract needs to be clear that you decide how the work is to be delivered, the working practices are slightly less clear cut but can be worked out. There are very, very few IT roles where D&C is an absolute certainty.

**rootsnall** · 14 May 2007, 11:34

Originally posted by malvolio

The contract needs to be clear that you decide how the work is to be delivered.

Does the PCG sample contract contain the legal words necessary to cover this ? Just having a gander at the draft contracts and schedules now.

**malvolio** · 14 May 2007, 11:47

You can safely assume the PCG contract covres all the IR35 bases...

Immediate Notice + IR35?