​Control

IR35 Guidance

Control over Services

What

If a contractor is being controlled by their client, this will be made clear, as they will be regularly directed on the work that needs to be completed by a manager or supervisor, with regular monitoring of the progress of work. In the event that a client is able to move the contractor from one job to another as a result of a change in priority, there could be considered a right of control over what is to be done – that is very much indicative of employment. [Stagecraft Ltd v Minister of National Insurance (1965)]

Where

Usually, a contract for services would state where the services are to be provided from, or may state whether a contractor may provide the services from a location of their own choice. In circumstances where the end client site is a secure location, for example a bank, it is understandable for security reasons that the contractor cannot provide the services from any other location. On the other hand, under a contract of service (employment) it is not uncommon that the client has the right to specify a location for the contractor to provide services.

When

Control over the times in which a contractor provides services also varies; employees tend to be required to work hours specified by their employer, whereas a self-employed individual is able to provide work in the hours they see befitting of the task and their own convenience. It is acceptable for the client to state the maximum number of hours that are to be spent providing the services per week for budgetary reasons to the contractor, however the allocation of these hours should be left to the contractor’s discretion. A contractor should therefore not be obliged to adhere to the same working times as the client’s own employees.

How

Control over how the tasks are completed can prove a problem. In the case of Morren v Swinton Borough Council, it was said:

“Clearly superintendence and control cannot be the decisive test when one is dealing with a professional man or man of some particular skill and experience. Instances of that have been given in the form of a master of a ship, an engine driver or a professional architect or, as in this case, a consulting engineer. In such cases, there can be no question of the employer telling him how to do the work, therefore the absence of control and direction in that sense can be of little, if any, use as a test.”

Contractors with a specialist skillset will most likely provide work for clients that are unable to source such a skillset in house. Therefore, it is important that throughout the duration of the engagement, the client is not able to direct or instruct you about how to undertake the work that you have been engaged to deliver. It should really be a case of the client relying upon the expertise of the contractor during the engagement. 

Indicators of control within a contract

It is not unusual that we see contracts entirely silent on the issue of control.

Ideally, we like to see the inclusion of a clause stating that the contractor's company has autonomy over how the services are carried out. Not only this, but it is important to see a lack of any negative wording that would indicate otherwise.

Frequently Asked Questions

1. I must provide my services at a location specified by my end client, does this count as control?
   
   Providing services at a client specified site does not always indicate control. Where contractors are providing a physical service or with high security protocols, it makes sense that the work is completed at a site specified by the client. However, if the services can be provided elsewhere with the same outcome, this would indicate the end client having control over the contractor.
   
   
2. I work set hours each day, does this mean I am subject to control?
   There are some instances where a contractor choosing the hours they provide their services in is not always practicable. For example, where an end client has set working hours due to health and safety or security.
   
   If, however, there are no genuine reasons for a contractor having set hours, that would be seen as a form of control.
   
   
3. My work must be checked for quality once completed. Is this a form of control?
   
   Having your work checked to ensure it fits the end client’s expectations is not necessarily an indicator of control. All clients carry out a form of quality control, it is highly unlikely that a client would sign off work that has not been delivered up to the required specification. In fact, having your work checked once monthly or weekly is widely acceptable. However, if this is a daily occurrence it then points towards supervision or monitoring and therefore control.
   
   
4. I have to follow rules and regulations relating to internal systems. Does this point towards control?
   
   Procedures, processes, or guidelines become a problem in regards to control where they are not statutory requirements and affect how a contractor provides their services.