Dealing with a company that bases IR35 decision on the CEST tool. Dealing with a company that bases IR35 decision on the CEST tool. - Page 2
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  1. #11

    Fingers like lightning


    Join Date
    Jul 2005
    Posts
    705

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    What you told us

    1. About you and the work
    Who are you?
    Worker

    What do you want to do?
    Make a new determination

    Are you trading through a limited company, partnership or unincorporated body?
    Yes

    Have you already started working for this client?
    Yes

    2. Worker’s duties
    Will you be an ‘Office Holder’?
    No

    3. Substitutes and helpers
    Have you ever sent a substitute to do this work?
    No, it has not happened

    Does your client have the right to reject a substitute?
    Yes


    Have you paid another person to do a significant amount of this work?
    No

    4. Working arrangements
    Does your client have the right to move you from the task you originally agreed to do?
    No, that would require a new contract or formal working arrangement

    Does your client have the right to decide how the work is done?
    No, you solely decide

    Does your client have the right to decide your working hours?
    No, you solely decide

    Does your client have the right to decide where you do the work?
    No, you solely decide

    5. Worker’s financial risk
    Will you have to buy equipment before your client pays you?
    No

    Will you have to fund any vehicle costs before your client pays you?
    No

    Will you have to buy materials before your client pays you?
    No

    Will you have to fund any other costs before your client pays you?
    Yes

    How will you be paid for this work?
    An hourly, daily or weekly rate

    If the client was not happy with your work, would you have to put it right?
    Yes, unpaid but your only cost would be losing the opportunity to do other work

    6. Worker’s involvement
    Will your client provide you with paid-for corporate benefits?
    No

    Will you have any management responsibilities for your client?
    No

    How would you introduce yourself to your client’s consumers or suppliers?
    You are an independent worker acting on your client’s behalf

    7. Worker’s contracts
    Does this contract stop you from doing similar work for other clients?
    No

    Are you required to ask permission to work for other clients?
    No

    Are there any ownership rights relating to this contract?
    No

    Have you had a previous contract with this client?
    No

    Is the current contract the first in a series of contracts agreed with this client?
    No

    Does the current contract allow for it to be extended?
    Yes

    Will this work take up the majority of your available working time?
    Yes

    Have you done any self-employed work of a similar nature for other clients in the last 12 months?
    Yes

    ...All of which resulted in an Outside determination.

  2. #12

    Still gathering requirements...


    Join Date
    Sep 2011
    Posts
    75

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    Quote Originally Posted by FIERCE TANK BATTLE View Post
    Likewise with control, we have a project manager, so they set progress meetings for the team periodically where people report progress/issues and she feeds it back to the end client to keep them up to date. If there's a problem with the project, e.g. at Christmas the supplier was on holiday, she said don't work that week (my contract is for 3 days a week since that's what the budget is).

    Since they 'controlled' me for that technically you have to answer the question of if I choose my own working times as false, even though it's true.
    I disagree with your interpretation.

    Firstly, the fact that they can unilaterally impose effectively a furlough mid-contract implies a distinct lack of mutuality of obligation, one of the three key foundations of employment (you would have been quite happy to do your 3 days, she said you can't work that week).

    Secondly, that kind of control isn't the kind which is considered when deciding employment status. The direction and control aspect isn't really so much to do with telling you what they want you to do (although HMRC would have you believe otherwise), it's all down to whether they can tell you how to do it. For example, if you get a tiler in and say which bathroom walls you want tiled and which tiles and grout to use, and you both agree on the days which would suit you for him to come and do it, that's not D&C. If you're standing there telling him how much adhesive to use and you make him come and check with you about whether the spacers are in the right place and how he's cutting the tiles to get the corner match done properly, that's D&C.

  3. #13

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    Quote Originally Posted by Snooky View Post
    I disagree with your interpretation.

    Firstly, the fact that they can unilaterally impose effectively a furlough mid-contract implies a distinct lack of mutuality of obligation, one of the three key foundations of employment (you would have been quite happy to do your 3 days, she said you can't work that week).

    Secondly, that kind of control isn't the kind which is considered when deciding employment status. The direction and control aspect isn't really so much to do with telling you what they want you to do (although HMRC would have you believe otherwise), it's all down to whether they can tell you how to do it. For example, if you get a tiler in and say which bathroom walls you want tiled and which tiles and grout to use, and you both agree on the days which would suit you for him to come and do it, that's not D&C. If you're standing there telling him how much adhesive to use and you make him come and check with you about whether the spacers are in the right place and how he's cutting the tiles to get the corner match done properly, that's D&C.
    I agree about D&C - in my niche The customers have decided to buy new fangled cloud based tiles and are relying on my knowledge of cloud based grout etc not that HMRC can see any of this


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  4. #14

    Still gathering requirements...


    Join Date
    Jul 2018
    Posts
    63

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    That's how I always understood SDC, it's the client telling you how to code, design etc. Them telling you what needs doing, what priorities are for this week and what the final result should be isn't ihmo control but I'm sure HMRC would disagree with every possible reasonable definition you chuck at them. Then again, how would they know anyway in case of an investigation? It's your word vs your client right and how each side sees things. It's like that example with Sky when they suddenly came out and said they would reject subs, there is moo and they control everything even though it might not be how things are in reality.

    Also, as it's been mentioned before many times, being able to work from wherever often doesn't carry much weight, permies can often do full weeks from home and in some industries you simply can't take any work home (defence for example).

    I'd focus on lack of MOO and substitute clauses with a detailed explanation that they can't reject a suitable, qualified sub.

  5. #15

    Should post faster

    FIERCE TANK BATTLE's Avatar
    Join Date
    Jul 2018
    Posts
    190

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    Thanks for replies.

    I agree I am clearly outside, but this is more about the CEST tool, cos it's filled in by someone with no real understanding of IR35 other than what they googled.

    Thanks for the CEST answers. It looks like it made a decision based on the 2nd criteria. Hopefully I can persuade them to answer in the same way, but it depends if I can influence the person filling it in - most bods will answer the wrong thing because they won't fully understand what it's asking. E.g. can I choose when and where I work - they'll be thinking no, we need him in the office at least *some* of the time because what would happen if we needed to talk to him? But the reality is yes I'll choose how I work and I'll do so in a way that's conducive to the business. Sometimes I work remotely. I usually come in super early to avoid traffic etc.

    I reckon I'll try to get there first by sending them an e-mail detailing the CEST answers above. If this works I owe you a pint =)

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