Contractors' Questions: Any IR35 risk to H&S form?
Contractor's Question: I'm confident that I'm not inside IR35 but an email I recently received through my client's staff email system has me concerned. The email asks all on-site staff to complete a DSE Assessment. I ignored it but a second email is now requesting those staff who haven't completed the form to do so. In the event I'm investigated under IR35, could completing this form, which is primarily for permanent staff (even though my fellow contractors have received the email too) count against me?
Expert's Answer: Health & Safety rules, including the Display Screen Equipment regulations, are the legislative responsibility of the engager and they apply to everyone on the engager's premises. On this basis they become a neutral point for IR35 status purposes.
The fact that the engager is using the same forms for contractors as they do for employees is not relevant, but you could enter the name of your limited company to demonstrate your status. As a general rule of thumb, if rules or practices in a workplace affect everyone including visitors they do not impact upon IR35.
For example, if everyone (including visitors) are entitled to park for free or use a subsidised restaurant then such a fact cannot be used to demonstrate that you are being treated like an employee or a "disguised employee" under IR35.
If it was possible for you not to sign the H&S form, good luck in the event of a fire at the workplace! Don't sign, and the engager would be under no obligation to advise you to leave the building. That would certainly demonstrate to the taxman that there was a lack of client control and a big personal risk for you!
The expert was Kate Cottrell, former Inland Revenue tax inspector and co-founder of IR35 specialists Bauer & Cottrell.