IR35: Direction and Control
Discussion
Here's an interesting little IR35 conundrum.
I have a prospective client who wants to engage my company to provide Developer Support services - I assume hot-fixing live code in Front Office trading environment although I won't know until I have a meeting with them early next week. And those services will include being on a rota and providing cover for defined hours (including the odd overnight and "early morning" whatever that is defined as).
On the face of it, defined hours smacks of "Direction and Control" which is, of course, something to be avoided if you want to stay outside IR35.
And yet companies outsource their support all the time.
What does everyone else think?
I have a prospective client who wants to engage my company to provide Developer Support services - I assume hot-fixing live code in Front Office trading environment although I won't know until I have a meeting with them early next week. And those services will include being on a rota and providing cover for defined hours (including the odd overnight and "early morning" whatever that is defined as).
On the face of it, defined hours smacks of "Direction and Control" which is, of course, something to be avoided if you want to stay outside IR35.
And yet companies outsource their support all the time.
What does everyone else think?
I don't think that the required times as set out would constitute enough evidence on their own to suggest "direction and control".
How many shops and retail outlest use 3rd party security guard or maintenance companies? I'm sure the individuals provided are required to be on station at times demanded by the businesses they are protecting or maintaining - and will also be required on occasion to be available for emergency call outs.
As ever with IR35, it's the overall context of the relationship that needs to be taken into account.
How many shops and retail outlest use 3rd party security guard or maintenance companies? I'm sure the individuals provided are required to be on station at times demanded by the businesses they are protecting or maintaining - and will also be required on occasion to be available for emergency call outs.
As ever with IR35, it's the overall context of the relationship that needs to be taken into account.
Edited by Eric Mc on Friday 8th February 10:31
Eric Mc said:
How many shops and retail outlets use 3rd party security guard or maintenance companies? I'm sure the individuals provided are required to be on station at times demanded by the businesses they are protecting or maintaining - and will also be required on occasion to be available for emergency call outs.
Yup - this is pretty much what I was thinking as well. 
Purely my opinion.... IANAL and all that!
D&C can be assessed by the extent to which on any given day the client determines the thing to be done, the way in which it gets done, the means to be employed in doing it, the time when and the place where it shall be done. Or, more simply, what, where, how, and when.
I assume you would remain in control of all the other factors, except maybe 'where' but you don't have a choice in that matter if you are on-site support - it would seem to me that the only part of contention is the 'when'.
I would suggest that if you were to be engaged under a support contract then there is considerable commercial pressure to *have* to work set times. In essence you simply *won't* be able to work as and when you like. So, the limitations put on when the work can be carried out says nothing about the IR35 friendliness and hence other factors would have to be considered. And since you are in control of the other factors (I hope!) you would have a strong case to not be caught by IR35 based on the client dictating when you have to work.
If that makes sense. And I've also made the cardinal sin of trying to be logical about it
D&C can be assessed by the extent to which on any given day the client determines the thing to be done, the way in which it gets done, the means to be employed in doing it, the time when and the place where it shall be done. Or, more simply, what, where, how, and when.
I assume you would remain in control of all the other factors, except maybe 'where' but you don't have a choice in that matter if you are on-site support - it would seem to me that the only part of contention is the 'when'.
I would suggest that if you were to be engaged under a support contract then there is considerable commercial pressure to *have* to work set times. In essence you simply *won't* be able to work as and when you like. So, the limitations put on when the work can be carried out says nothing about the IR35 friendliness and hence other factors would have to be considered. And since you are in control of the other factors (I hope!) you would have a strong case to not be caught by IR35 based on the client dictating when you have to work.
If that makes sense. And I've also made the cardinal sin of trying to be logical about it
Edited by bigandclever on Friday 8th February 10:48
When you think about it, the whole "control" test is rather tenuous when looked at in isolation.
When you hire a self-employed individual to do some work for you, you will still want to ensure that agreed times for carrying out the work are set in advance - and you will also want to put some contraints and controls on the manner in which they do their work - espoecially if the work is being carried out in your premises.
"Self Employed" does not imply "totally uncontrolled".
When you hire a self-employed individual to do some work for you, you will still want to ensure that agreed times for carrying out the work are set in advance - and you will also want to put some contraints and controls on the manner in which they do their work - espoecially if the work is being carried out in your premises.
"Self Employed" does not imply "totally uncontrolled".
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