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New contract IR35 pre-cautions

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    #11
    Originally posted by northernladuk View Post
    Seems perfectly reasonable. If they aren't willing to give you a determination before you start I'd be worried. There is still time so go with that.

    I wouldn't stop looking for gigs though. They turn round and say it's blanket inside at the last minute then you've got nothing and are having to start again at the worst possible time ever in contracting.
    Agreed - i think if they are not willing to confirm post April then they are wasting my time and I'll just turn if down.

    I will also hand in notice regardless so I am off the radar for my current client. i'd rather be on the bench for a little time than panic and accept a ticking bomb.

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      #12
      Originally posted by hammertime1985 View Post
      Agreed - i think if they are not willing to confirm post April then they are wasting my time and I'll just turn if down.

      I will also hand in notice regardless so I am off the radar for my current client. i'd rather be on the bench for a little time than panic and accept a ticking bomb.
      It's hard giving advice to some of these thread as some of the posters are just clueless and take us on our word. I'd hate to think I make someone quit a gig and the worst never happens and they blame us. Hopefully they'll read the advice and come to their own conclusion as it appears you have.

      Hopefully the upside here is that plenty of people will leave and it' will just become a f***king huge merry go round where you quit your gig, someone else quits theirs, both gigs become inside and you just swap jobs with that person. Both back in work, outside to inside determination avoided and wait and see. If the majority of gigs go inside then you are were you were going to end up anyway but happily off HMRC's radar.
      It's not like people are leaving gigs in to a dead market. It's going to be a bit hectic between now and April I reckon. Many people could possibly pick some close to home gigs that actually suit them.

      I still think a website or part of the forum to connect people to help swap roles would be useful. Bad example as they won't have a determination but there must be a ton of people at Lloyds that would quite happily take a gig over the road at Barclays and vice versa just to avoid retro issues.
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        #13
        Originally posted by northernladuk View Post
        It's hard giving advice to some of these thread as some of the posters are just clueless and take us on our word. I'd hate to think I make someone quit a gig and the worst never happens and they blame us. Hopefully they'll read the advice and come to their own conclusion as it appears you have.

        Hopefully the upside here is that plenty of people will leave and it' will just become a f***king huge merry go round where you quit your gig, someone else quits theirs, both gigs become inside and you just swap jobs with that person. Both back in work, outside to inside determination avoided and wait and see. If the majority of gigs go inside then you are were you were going to end up anyway but happily off HMRC's radar.
        It's not like people are leaving gigs in to a dead market. It's going to be a bit hectic between now and April I reckon. Many people could possibly pick some close to home gigs that actually suit them.

        I still think a website or part of the forum to connect people to help swap roles would be useful. Bad example as they won't have a determination but there must be a ton of people at Lloyds that would quite happily take a gig over the road at Barclays and vice versa just to avoid retro issues.
        Totally agree it is going to be a job swap situation out there.

        Seeing a lot of (optimistic) people stating they think the reforms will be delayed for another year. That would help, although can't see a lot of the banks reversing their decisions but you never know.

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          #14
          Lloyds have explicitly said that in the event of the Finance Act not containing the expected legislation, they won't be changing their mind re engaging limited companies.

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            #15
            Originally posted by hammertime1985 View Post
            Totally agree it is going to be a job swap situation out there.

            Seeing a lot of (optimistic) people stating they think the reforms will be delayed for another year. That would help, although can't see a lot of the banks reversing their decisions but you never know.
            F**k the banks. They are the 5hittiest places on earth to work. I should know I've contracted at a fair few of them, though none since mid-2014. Can't say I miss them or their multiple rate cuts at all. There are better opportunities outside of banking and tbh, the difference in rates is nothing like it used to be. Most of the banks haven't really recovered from the financial crisis and when they tried, along came the fintech companies to finish them off. Good riddance to bad rubbish is my view.

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              #16
              Originally posted by hammertime1985 View Post
              Agreed - i think if they are not willing to confirm post April then they are wasting my time and I'll just turn if down.

              I will also hand in notice regardless so I am off the radar for my current client.
              Just be aware that the end client is under no legal obligation to give you a "confirmation" post April. If they refuse, outside of some contractual obligation (which in my view they would be unwise to have agreed to), you have little leverage.

              Also a bit concerning that you need to "hand in notice". That indicates that rather than performing a set of services that are complete when they are complete, there is instead some continuing relationship that can be terminated by mutual notice giving. In the scales weighing "in/out", I would say that this is very much on the "in" side.
              Best Forum Adviser & Forum Personality of the Year 2018.

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                #17
                Originally posted by webberg View Post
                a bit concerning that you need to "hand in notice". That indicates that rather than performing a set of services that are complete when they are complete, there is instead some continuing relationship that can be terminated by mutual notice giving. In the scales weighing "in/out", I would say that this is very much on the "in" side.
                I don't get how you can presume any of that from someone simply having a notice period in the contract. Its totally reasonable to have a notice period in a contract. Its marginal at worse.

                Every single contract I have signed had some level of notice period in it - all of them outside of IR35.

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                  #18
                  Originally posted by dx4100 View Post
                  I don't get how you can presume any of that from someone simply having a notice period in the contract. Its totally reasonable to have a notice period in a contract. Its marginal at worse.

                  Every single contract I have signed had some level of notice period in it - all of them outside of IR35.
                  I was comparing a contract for the provision of a service, perhaps a project delivery, which will presumably finish when the work is done, with a contract which requires some attendance or availability on a continuous but not necessarily contiguous basis.

                  My view is that a contract to deliver a project, ends when the work is complete and that walking away before that agree point is reached may not require "notice".

                  A contract for continuous availability, implies an ongoing need from the end client and in the event that somebody filling that role wants to leave, then notice may be required in order to arrange a replacement.

                  My opinion, is that any scenario in which an individual has to ask permission to work/not work is leaning towards employment.

                  You are however entirely correct to pick me up on what may be a personal opinion based on an assumption and in the event that circumstances dictate otherwise, then my view may well have less weight than I implied. My apologies.
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                    #19
                    Originally posted by webberg View Post
                    My opinion, is that any scenario in which an individual has to ask permission to work/not work is leaning towards employment.

                    You are however entirely correct to pick me up on what may be a personal opinion based on an assumption and in the event that circumstances dictate otherwise, then my view may well have less weight than I implied. My apologies.
                    You are partly correct, but only partly. You are talking about what is known as Mutuality of Obligation. It is one of the three pillars of IR35/Employment vs Self-Employment case law.

                    There are other factors but the rulings have basically said that for there to be employment, there has to be Service/Direction/Control (we often abbreviate SDC here), a non-negligible MoO (Mutuality of Obligation), and no right of substitution. If SDC or MoO is lacking, or if there is the right of substitution, there is no employment, disguised or otherwise, and IR35 should not apply.

                    MoO, where it exists, then, is indeed a pointer to employment and thus IR35. In that you are correct. It is not, however, sufficient on its own to constitute an inside ruling, so in that you were mistaken.

                    I currently have two contracts running where I guarantee to provide between X and Y hours of services, at the client's discretion, and the client exercises significant SDC. These contracts are far from IR35 because the client doesn't even know which coders are going to do it, nor do I necessarily know that in advance. There's no substitution because there's not even anyone named. The client is taking my word for it that I'm going to put competent people on the project.

                    I have another where the client has spec'd out a project and I'm being paid an hourly rate, but only when it is done. If I give notice I'll get something but not as much, if they give notice I'll get paid the full amount for the hours I've worked plus some. There's not really any SDC as far as how the work is done, but there is the possibility of spec creep, that's why it's hourly pay rather than fixed cost. But there certainly is a notice provision and it doesn't put the contract inside IR35 -- no SDC, and I could substitute if I wanted. So far I'm doing this one myself. So on this one there's notice and therefore some element of MoO, probably not enough to really be consistent with IR35, but it's outside on other pillars anyway.

                    That's a couple examples of how a contract with MoO could still easily be outside. Even if there's notice provisions, there can be a lot of other things in the contract that just aren't consistent with a master-servant relationship.

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                      #20
                      I wonder what Webberg's view on this contract would be:
                      Home Office Law Enforcement Community Network (LECN) - Cyber Security Consultant - Digital Marketplace

                      Reporting to the Programme Delivery Manager
                      Work as part of the Law Enforcement Community Programme team
                      Individuals may be required to work at any of the Customer premises and/or at supplier sites

                      The initial contract is 6 months whereas the project is expected to last upto 12 months........i.e. it's not just a "contract for the project duration"


                      From comments I've read on here, I bet many of you would jump into saying this is inside from the bits just quoted.

                      The status mentioned in the job ad is:
                      "The role is currently deemed out of scope of the IR35 regulations. However, at the point of contract award to a successful supplier, the IR35 assessment will be re-visited based on the individual circumstances of the DOS Specialist."


                      It keeps getting said on here that status determinations are role based. In which case interesting how this one will bear in mind the inidvidual circumstances of the contractor (which I agree it should do).


                      This isn't my area of work, just interested whether it fits people's view of how things should work
                      Last edited by PTP; 15 October 2019, 20:31.

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