Caught sight of Client's MSA and SoW - inside IR35?

[7specialgems]

I'm doing some work with a small UK consultancy at the moment (supplied to their customer on their customer's site) and I'm reading some concerning language such as

"Client's internal project team will manage the delivery of this SOW throughout"

"The Supplier shall deliver capability as directed by the Client" (Supplier in this context being the small consultancy and Client being their customer)

I also appear to be a named resource in the staffing plan for the statement of work.

Gut instinct is get the hell of out of dodge.

But am I being flippant?

I'm trying to see things from the consultancy's side and finding it difficult to imagine how a statement of work would otherwise be written with sympathy to contractors considering themselves outside of IR35.

[jamesbrown]

Don't ask us, ask a status expert.

That being said, I think they'll need more to go on - the complete MSA and SoW and details of the working practices. When part of an over-arching SoW is subcontracted, you would expect some oversight of the SoW as-a-whole as you move up the chain. The statement "as directed by" is superficially bad, but it will depend on the details, i.e. how your working practices look, day-to-day. Reality always trumps the contractual view of reality, providing you can evidence reality.

[northernladuk]

What JB said but you need a belt and braces approach here. The fact you are contracting to a consultant working for their client is always brings an extra level of problems due to you having to look like an employee to their end client. It's not a great situation whatever the size of the parties involved but it's even worse when it's a small consultancy. They just aren't big enough to be able to argue that you are fulfilling a specialist short term role. It's more often a case they don't have enough staff so again the risk rises of them treating you like an employee.

Not insurmountable at all but both the size of the consultancy and the fact you are on a clients of your clients site makes IR35 much more of an issue.

[Larsen Howie]

I'm doing some work with a small UK consultancy at the moment (supplied to their customer on their customer's site) and I'm reading some concerning language such as

"Client's internal project team will manage the delivery of this SOW throughout"

"The Supplier shall deliver capability as directed by the Client" (Supplier in this context being the small consultancy and Client being their customer)

I also appear to be a named resource in the staffing plan for the statement of work.

Gut instinct is get the hell of out of dodge.

But am I being flippant?

I'm trying to see things from the consultancy's side and finding it difficult to imagine how a statement of work would otherwise be written with sympathy to contractors considering themselves outside of IR35.

As has been mentioned in the replies above, these are indicators, but not the whole picture. In order to determine if you should give this contract a miss, you’d need more information in order to make a considered decision - generally a review of the full contractual terms and probably the working practices alongside (which is ultimately the more telling factor for IR35 status anyway) will help you no ends with this.

For example, being a named resource on the staffing plan for the statement of work does sound bad on the surface, but if it is easy to add individuals to that staffing list and you have a good, unfettered substitution right then that would effectively trump the fact you’re named on the plan (although the recommendation would still be made to remove yourself from that list if possible!)

Hope that helps

Matt - LH