Work in Banking? Don't worry about the blanket ban you were probably inside all along

[perplexed]

Of course they will. They will start by going after those who have had large revenues over the last several years

I'm safe then...

[simes]

Do hmrc only have to prove one of the three pillars to win the case? I thought it would have to be the other way around, accused only having to prove MoO or RoS to get off.

I must admit, I thought a contractor only required one of the three pillars to prove Outside-dom. Obviously aim for all three, but if you have one of them, you're in business.

[eek]

I must admit, I thought a contractor only required one of the three pillars to prove Outside-dom. Obviously aim for all three, but if you have one of them, you're in business.

Let's look at the contract and a finance contract in regards to the judgement:-

Substitution - Finally, I have found that there was no substantive prospect of MrLee asking for or Nationwide, acting reasonably, agreeing to a substitute
SDC - Mr Lee had in practicea considerable degree of operational and personal autonomy but was subject to overarchingcontrols primarily concerned with Nationwide’s need as a highly regulated business tomonitor the progress of the relevant project consistent with Mr Lee being a highly skilledemployee. However, Mr Lee could not be moved to a different project without his consent
MoO - There was a mutuality of obligation between the parties but only within each contract (it's enough).

And tell me how that is different from any other finance contract in the past 20 years (Substitution exists but can't be exercised, MoO exists within the contract and you are caught by the SDC determination). Every time I've looked at that list in the past 30 minutes I can't think of any finance contract that isn't captured within it.

[northernladuk]

Seems a pretty stand situation that is going to apply to most project managers that stay with a client through a number of projects over a number of years. Particularly bad news for a standard permietractors doing this

Also makes the point I keep raising about time being an issue with IR35.

JtB must be absolutely crapping himself.

[Antman]

RoS isn't mentioned. MoO is mentioned but it wasn't a deciding factor - there is no MoO between contracts but was within the contracts themselves.

Oh found it - dismissed as

MoO is always going to be an awkward one as it doesn't actually mean what people think it does...

I think that there is a way to protect yourself if you can have a conversation with the client to get them to understand what MoO is and get a documented decision from them about it. It's a win for them and us .


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[perplexed]

RoS isn't mentioned. MoO is mentioned but it wasn't a deciding factor - there is no MoO between contracts but was within the contracts themselves.

Oh found it - dismissed as

MoO is always going to be an awkward one as it doesn't actually mean what people think it does...

Well, didn't mean what HMRC claimed it to mean, reading the article.

I'm maybe misreading it, but it strikes me that the judge ruled there was MOO in each contract, meaning had to accept what was requested by client, client had to provide work in each contract. I'm certainly surprised by the latter but the former raises the question of what the ruling would be if client were to ask to do things explicitly mentioned in statement of work. Asking you to do something you signed up to do wouldn't appear to be MOO to me?

Without seeing the actual contract, sounds like it could have been a generalised "provide service" type thing, where client would ask for more specific work done during each contract?

[eek]

Well, didn't mean what HMRC claimed it to mean, reading the article.

Asking you to do something you signed up to do wouldn't appear to be MOO to me?

Covered in the judgement and not deemed important - However, Mr Lee could not be moved to a different project without his consent

[ContractorHardman]

This is the reason why IR35 is being enforced differently. The guy stayed for multiple projects in the same department. He worked at Nationwide for years. I am sure those who have varied contracts through different companies will be fine from being chased.

as NLUK says, this is bad for Permie-tractors!

[DaveB]

Do hmrc only have to prove one of the three pillars to win the case? I thought it would have to be the other way around, accused only having to prove MoO or RoS to get off.


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edit: OK read the article, interesting part about MoO that can be used elsewhere though

Failed on all three:

161. I have found the hypothetical contract to be as set out at paragraph 145 above.
162. Looking at the nature if the relationship in the round, in my view Mr Lee’s relationship
with Nationwide is one of employment.
163. There was a mutuality of obligation between the parties but only within each contract.
Mr Lee was engaged under separate contracts with no obligation on either party to extend or
renew. However, with few gaps Mr Lee has worked for Nationwide for number of years full
time in substantially the same project management role.
164. During the course of a contract Nationwide had the right, albeit not exercised, to direct
where Mr Lee worked and to require him to work a professional day. Mr Lee had in practice
a considerable degree of operational and personal autonomy but was subject to overarching
controls primarily concerned with Nationwide’s need as a highly regulated business to
monitor the progress of the relevant project consistent with Mr Lee being a highly skilled
employee. However, Mr Lee could not be moved to a different project without his consent.
165. During the time of Mr Lee’s series of contracts with Nationwide, aside from the risk of
not being engaged on a new contract (which happened rarely), he was not subject to any
financial risk beyond that of an employee and in many respects, was part and parcel of
Nationwide’s operations. Finally, I have found that there was no substantive prospect of Mr
Lee asking for or Nationwide, acting reasonably, agreeing to a substitute.
166. On balance, I find that the hypothetical contracts required by the Intermediaries
Legislation between Mr Lee and Nationwide would be ones of employment. Accordingly,
this appeal is dismissed.

[perplexed]

Covered in the judgement and not deemed important - However, Mr Lee could not be moved to a different project without his consent

Agreed, just curious. I'd assume it's the difference between "PM for Project X" and "PM for Project X where A, B and C are the deliverables by ZZ".