IR35 this IR35 that - so just so I'm clear what is IR35? (Feature)

[Malvolio]

Originally Posted by CrazyMoose

jeeezzz, did someone just say "Smoke & Mirrors"?

While it is clear to some what IR35 is meant to do, although that clarity clearly doesn't extend to those who have to clear up the mess it has created, it is also clear that the law itself is not clear, clearly leading to confusion about the application of the law and subesequent lack of clarity about how to express the law in clear terms. I trust that's clear?

[CrazyMoose]

.....lol!

[PhilAtBFCA]

Originally Posted by Vaseline

This is a really helpful post Phil. I had to read it twice to make sure it sank in. I'm still however not entirely convinced by your first point. So, just so i'm 100% clear on this, you're saying that I could be completely under the control of my client (2. Control) and they're also obligated (3. Mutuality Of Obligation) to provide work for me, and I am obliged to accept that work BUT just because I am able to provide a substitute worker (1. Personal Service) I will not fall foul of IR35?

It would be great to clarify this point....

Thanks again
V

Hi vaseline,

Absolutely yes, 100%.

All three of the irreducible minimum factors of employment need to be present for an employment relationship to exist. Thats the case law so far.

Nothing has changed with this case law basis of deciding whether an engagement is one of employment or not.

Each case is however decided on its merits.

Dragonfly is often brought up when discussing the lack of personal service in a contract, but this case did not change the basis for deciding on employment cases, it is stilll the "irreducible minimum of three" that is important. One missing = not employment . Clear.

Dragonfly on the otherhand did demonstrate, as have other cases, that where a substitution clause is part of the evidence to suggest that personal service is not required, then if this clause is a sham, i.e. not practical, not enforceable, not reasonable - then it will be disregarded by the courts.

In Dragonfly 3 matters were brought to the judges attention ( from memory ) a) the agency>client upper contract did not have a substitution clause in it b) the client gave evidence that it did not believe theere could be any substitution and c) that there was only one substitution caluse out of a series of contracts some of which did not have a substitution clause in them.

On the basis of the above the judge decided that the worker had to provide the services themselves - there was personal service.


So, back to trying to be clear ( LOL ) - yes in theory lack of personal service alone is enough to show that the engagement is not one of employment and therefore outside of IR35. - BUT - if thats all you are relying on out of the three then you better make 100% sure that its crystal clear that no personal service is required and that its practical, workable, realistic and reasonable.

PS, if its of help we have a video series on IR35.

Phil

[Vaseline]

Blimey, you really could go a little crazy thinking about it couldn't you? Thanks again for the information Phil, I also checked out the videos which were helpful.

[Susie90]

Hello,

This is a really interesting discussion, thanks so much for the information.

I'm now going to spend the morning reviewing the documentation I have for my latest contract just to ensure everything looks OK IR35 wise.

Susie