IR35 stupidity from Agency
Discussion
A mate of mine has JUST sent me a copy of the email he's just sent to his agency, responding to the one below it.
I think he's very pissed off, and wonder if he's right to be.
Hi,
I'd like a written confirmation that my contract is outside of IR35, because in my humble opinion XXXXX XXXXX XXXXXX are putting mine and all the Ltd company contractors at risk by sending this email.
I think that you should take legal advice from someone that understands the recent changes to IR35, and I'd request that a director of the company contacts me to put my mind at rest, because I'm astonished at your apparent stupidity.
XXXX XXXXXX
Director
YYYYYYYYYYYYYYYYYY Ltd
075XXYYTT05
From: Agency
To: all the contractors who work for us and the client
Sent: Wednesday, 30 May, 2012 2:00:52 PM
Subject: Queen's Diamond Jubilee - Tuesday 5th June 2012
Hi,
You may be aware that this year there has been an extra Bank Holiday granted due to the Queen’s Diamond Jubilee. This day is Tuesday 5th June 2012.
It has been decided by THE CLIENT that on this Bank Holiday known as ‘Diamond Jubilee Day’ paid leave is discretionary (in line with UK law) and is being granted to some permanent employees, so therefore some temporary workers could be included but it will be site dependent at the discretion of the hiring managers in line with HR policy per site.
Should your site be one of those that will make a discretionary payment for this particular day it’s really important that you complete your timesheet in the following way;
For the Diamond Jubilee Day (Tues 5th June) only write normal working hours for this day on your timesheet, nothing else apart from your other standard working days worked that week. Do not annotate this day as holiday (Bank or otherwise) as this may result in non-payment. Your timesheet will need to be signed by your line manager in the usual way. Standard pay will then be paid to you in line with your normal terms of payment for that week.
Many thanks.
Regards
THE CLIENTS NAME Temporary Labour Contract Management Team
I think he's very pissed off, and wonder if he's right to be.
Hi,
I'd like a written confirmation that my contract is outside of IR35, because in my humble opinion XXXXX XXXXX XXXXXX are putting mine and all the Ltd company contractors at risk by sending this email.
I think that you should take legal advice from someone that understands the recent changes to IR35, and I'd request that a director of the company contacts me to put my mind at rest, because I'm astonished at your apparent stupidity.
XXXX XXXXXX
Director
YYYYYYYYYYYYYYYYYY Ltd
075XXYYTT05
From: Agency
To: all the contractors who work for us and the client
Sent: Wednesday, 30 May, 2012 2:00:52 PM
Subject: Queen's Diamond Jubilee - Tuesday 5th June 2012
Hi,
You may be aware that this year there has been an extra Bank Holiday granted due to the Queen’s Diamond Jubilee. This day is Tuesday 5th June 2012.
It has been decided by THE CLIENT that on this Bank Holiday known as ‘Diamond Jubilee Day’ paid leave is discretionary (in line with UK law) and is being granted to some permanent employees, so therefore some temporary workers could be included but it will be site dependent at the discretion of the hiring managers in line with HR policy per site.
Should your site be one of those that will make a discretionary payment for this particular day it’s really important that you complete your timesheet in the following way;
For the Diamond Jubilee Day (Tues 5th June) only write normal working hours for this day on your timesheet, nothing else apart from your other standard working days worked that week. Do not annotate this day as holiday (Bank or otherwise) as this may result in non-payment. Your timesheet will need to be signed by your line manager in the usual way. Standard pay will then be paid to you in line with your normal terms of payment for that week.
Many thanks.
Regards
THE CLIENTS NAME Temporary Labour Contract Management Team
Eric Mc said:
Nor do I.
Is is mate being offered payment for that day? If so, he could have a problem but if he refuses to accept payment that should clarify the matter.
In initial discussions it seems: Is is mate being offered payment for that day? If so, he could have a problem but if he refuses to accept payment that should clarify the matter.
Agency said:
It has been decided by THE CLIENT that on this Bank Holiday known as ‘Diamond Jubilee Day’ paid leave is discretionary and some temporary workers could be included but it will be site dependent at the discretion of the hiring managers in line with HR policy per site
The words could and discretion make the email a bit unspecific. It may be that some agency workers on some UK sites are NOT Ltd company contractors, and they (normally admin clerky types) are on the agency as PAYE, I'll ask him. In which case I could see why it might apply to them.
But ltd subbies don't get paid on bank hols so why even send them the email ?
Sounds like the agency hasn't split its email distribution list for agency paye & ltd co contractors. I would guess as long as your mate doesn't invoice for the bank holiday he will be fine. However paid holidays are seen as an indicator toward employment in an ir35 investigation as you probably already know.
But I'm not sure how this would be looked at by HMRC. Would they take the view that it was offered and not invoiced for in the same way as being paid holiday. In any case its only one part of the employment tests. If your friend is in the PCG it might be worth asking them for sound advice.
But I'm not sure how this would be looked at by HMRC. Would they take the view that it was offered and not invoiced for in the same way as being paid holiday. In any case its only one part of the employment tests. If your friend is in the PCG it might be worth asking them for sound advice.
Tim330 said:
Sounds like the agency hasn't split its email distribution list for agency paye & ltd co contractors.
Well the reply was short. The agency said:
Hi Contractor,
You have received this email by omission, my apologies for that.
Best regards,
Agency Stooge
XX CLIENT's name XXX Temporary Labour Contract Management Team
Recruiting Agency
Making people unhappy is the what we do best
t: +44 (0) 207 xxx xxx
f: +44 (0) ???????
m: someone@agency.com
w: www.agency.com
P please consider the environment before printing this
They haven't got a clue. You have received this email by omission, my apologies for that.
Best regards,
Agency Stooge
XX CLIENT's name XXX Temporary Labour Contract Management Team
Recruiting Agency
Making people unhappy is the what we do best
t: +44 (0) 207 xxx xxx
f: +44 (0) ???????
m: someone@agency.com
w: www.agency.com
P please consider the environment before printing this
Eric Mc said:
What do they mean with "by ommission".
It sounds the opposite to me. The limited company contractors should have been ommitted from the e-mail - but they weren't. It sounds like on error of "commission" to me - i.e. the exact opposite to what they say.
I think they were trying to say feck up in a polite way. It sounds the opposite to me. The limited company contractors should have been ommitted from the e-mail - but they weren't. It sounds like on error of "commission" to me - i.e. the exact opposite to what they say.
I meant to post an update on last weeks outburst from one contractor to another.
So an email is forwarded by a contractor in another building in a different but related department, to our hero, which has an email chain, from someone high up to the next manager down, to the next manager down, then copoied to all ltd company contractors in HIS department, but not to any others with an explanation, which says if you are employed via said agency, you should be paid, and if you are employed directly via a ltd company you should not. And via the email chain, and chinese whispers, it came down to you can all be paid as you with the agency.
Making it clear as mud if you are employed via a ltd company but via the agency, that they probably meant those temporary staff employed via a PAYE contract.
Anyway, a straw pole of all the contractors our hero knew in both areas, suggested that 100% of ltd company contractors were NEVER going to take the small risk of making that claim.
Until Last week, our hero is sitting next to a different hiring manger who has been handed a time sheet by 'his' contractor, and is phoning HR to check. Our Hero pipes up to the other contractor, out of ear shot of anyone. "Do you not think there are IR35 issues with being paid for holidays"
Guess the response ?
That's right "Why don't you keep your nose out of it, it's nothing to do with you"
Our Hero tells me "I might be a bit nosey, but I was just pointing out the potential risks, to a fellow contractor, but hey if I ever get an IR35 investigation, I'll show them the email, which states I was offered holiday pay in error, and point out the name of the one person that took it"
So an email is forwarded by a contractor in another building in a different but related department, to our hero, which has an email chain, from someone high up to the next manager down, to the next manager down, then copoied to all ltd company contractors in HIS department, but not to any others with an explanation, which says if you are employed via said agency, you should be paid, and if you are employed directly via a ltd company you should not. And via the email chain, and chinese whispers, it came down to you can all be paid as you with the agency.
Making it clear as mud if you are employed via a ltd company but via the agency, that they probably meant those temporary staff employed via a PAYE contract.
Anyway, a straw pole of all the contractors our hero knew in both areas, suggested that 100% of ltd company contractors were NEVER going to take the small risk of making that claim.
Until Last week, our hero is sitting next to a different hiring manger who has been handed a time sheet by 'his' contractor, and is phoning HR to check. Our Hero pipes up to the other contractor, out of ear shot of anyone. "Do you not think there are IR35 issues with being paid for holidays"
Guess the response ?
That's right "Why don't you keep your nose out of it, it's nothing to do with you"
Our Hero tells me "I might be a bit nosey, but I was just pointing out the potential risks, to a fellow contractor, but hey if I ever get an IR35 investigation, I'll show them the email, which states I was offered holiday pay in error, and point out the name of the one person that took it"
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