Public Sector IR35 New Requirement.

[LisaContractorUmbrella]

Don't rely too much on Dragonfly, it was a bit of a one off in many senses (not least the judge's cheery dismissal of the client's admission that they had no intention of honouring the contractual clauses the'd agreed to, and a strong MOO indicator could be ignored...). Ultimately the case was lost on D&C, where the client was telling the worker what to work on next, but you only need one of the three of D&C, MOO and RoS to be present and two of them were. The decision was appealable had Dragonfly not lost interest in fighting any more.

But the one thing it did prove was that the reality on the ground and the contract had to align properly.

Haven't you just contradicted yourself there Mal? The judge's 'cheery dismissal' was as a result of the contract not reflecting reality. Even HMR&C have had long enough to work out that a contract that doesn't reflect reality is not worth the paper it's written on; the Dragonfly case was the first to hammer this home.

[malvolio]

Haven't you just contradicted yourself there Mal? The judge's 'cheery dismissal' was as a result of the contract not reflecting reality. Even HMR&C have had long enough to work out that a contract that doesn't reflect reality is not worth the paper it's written on; the Dragonfly case was the first to hammer this home.

No , the cheery dismissal was the judge ignoring a key point of contract law, that it is a mutual agreement. The client had agreed to permit a sub in the full knowledge that they had no intention of ever doing so.

Of course, the way IR35 works, the client can do what the hell they like, having dumped their contractor in the brown stuff, since there is no comeback. If you could change one thing about IR35, it would be to put the Employer NIC liability back on the client. You would quickly see better, and better-honoured contracts turning up.

[KentPhilip]

the other day I received a letter from them stating that they believe my contract falls within IR35 and I have to provide evidence, either that I am outside IR35 or provide a projected amount of tax/NI I would pay if within IR35.

I don't see what the problem is.
You send them a letter with evidence stating that you believe you are outside IR35. If they don't agree with you then stuff them - they can't force you to go inside IR35, all they can do is fire you, in which case let them.

Get the QDOS insurance which will cover you whatever. You no longer need to have contracts assessed by them, and they will cover you whatever the content of any contract (subject to some questions that you can read on their application home page).

[LisaContractorUmbrella]

No , the cheery dismissal was the judge ignoring a key point of contract law, that it is a mutual agreement. The client had agreed to permit a sub in the full knowledge that they had no intention of ever doing so.

Of course, the way IR35 works, the client can do what the hell they like, having dumped their contractor in the brown stuff, since there is no comeback. If you could change one thing about IR35, it would be to put the Employer NIC liability back on the client. You would quickly see better, and better-honoured contracts turning up.

Wouldn't be surprised if this happens - was watching Treasury Select Committee meeting the other day on the whole BBC off payroll fiasco and it was stated that the BBC could be subject to fines from HMR&C for not establishing IR35 status; don't know it's just because the tax payer has an interest or because they are thinking along the lines you're suggesting

[Defstun]

I don't see what the problem is.
You send them a letter with evidence stating that you believe you are outside IR35. If they don't agree with you then stuff them - they can't force you to go inside IR35, all they can do is fire you, in which case let them.

Get the QDOS insurance which will cover you whatever. You no longer need to have contracts assessed by them, and they will cover you whatever the content of any contract (subject to some questions that you can read on their application home page).

Cheers kent. Gonna do exactly that and I'm going to stop worrying about the whole thing.

[centurian]

Don't rely too much on Dragonfly, it was a bit of a one off in many senses (not least the judge's cheery dismissal of the client's admission that they had no intention of honouring the contractual clauses the'd agreed to, and a strong MOO indicator could be ignored...). Ultimately the case was lost on D&C, where the client was telling the worker what to work on next, but you only need one of the three of D&C, MOO and RoS to be present and two of them were. The decision was appealable had Dragonfly not lost interest in fighting any more.

But the one thing it did prove was that the reality on the ground and the contract had to align properly.

True - I agree it's important not to be too scared by Dragonfly.

But - it is legal precedent now, which makes it considerably harder to argue against points raised in the judgement - such as having a series of contracts whereby bad IR35 clauses are removed, which is what the OP was considering as their preferred option.

[centurian]

Wouldn't be surprised if this happens - was watching Treasury Select Committee meeting the other day on the whole BBC off payroll fiasco and it was stated that the BBC could be subject to fines from HMR&C for not establishing IR35 status; don't know it's just because the tax payer has an interest or because they are thinking along the lines you're suggesting

WSS

My first contract was inside IR35. This was in part due to a complete and utter #@&% of a dev manager, who when contractors politely pointed out that following certain ClientCo policies could cause issues with IR35, he quite proudly (and loudly) stated "tough - your tax affairs are not my problem".

[eek]

WSS

My first contract was inside IR35. This was in part due to a complete and utter #@&% of a dev manager, who when contractors politely pointed out that following certain ClientCo policies could cause issues with IR35, he quite proudly (and loudly) stated "tough - your tax affairs are not my problem".

Which works until he has no developers but considering how few people know the intimate details about these things I doubt he's had a shortage of contractors.