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IR35 Advice Centre

 

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IR35 Guidance

 

Control over Services

The level of control exercised by the client over the services which are to be provided, as well as the manner in which they are provided, when they are provided, and where they are provided is very important for determining IR35 status.

It is acceptable for a contractor to mutually agree to execute a set task at a time and location specified by the client, but they should not be subject to any control or supervision from the client; it should be clear that the contractor is able to execute the work according to how they decide. Alternatively, an employee will probably have set times and locations for work; as shown in the case of Morren v Swinton and Pendlebury Borough Council (1965).

Having said this, in order to show that control is present, it needs to be a lot more than just shallow monitoring or reviewing of outputs. As per the case of [Chaplin v Australian Mutual Provident], unless the contractor is tied "hand and foot" to the client, control would not be so much as detrimental.

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.

Indicators of being outside IR35

 
  1. The contractor is able to provide the services in a manner that they see fit
  2. Hours of work are 'agreed upon' between both contractor and end client
  3. As long as the services are complete before the agreed upon deadline, the contractor should be able to manage their own time

Indicators of being inside IR35

 
  1. The contractor being under the 'supervision', 'direction', or 'control' of the end client
  2. The hours of work are dictated to the contractor by the end client
  3. The contractor is required to seek approval for taking time off
  4. The contractor can be moved from job to job by the client without the contractor's agreement

 

 

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.
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The Company

 

About Us

Why Qdos?

 

Qdos Contractor are one of the leading providers of specialist contractor insurance services in the UK. Our online application process takes only a matter of minutes with all documentation issued instantly. Unlike many other brokers, we don’t hide our premiums until you've provided your details, as we are confident that our premiums, service and product are the best in the market. In addition, Qdos Contractor is one of the leading authorities on the IR35 legislation and have handled well over 1,500 IR35 enquiries on behalf of UK contractors.

 

Our History

 

Qdos began in 1988 as a tax consultancy business and has grown significantly over the past two decades, providing expert business services, products and advice. Over the years, Qdos has grown in both size and reputation as a trusted contractor insurance broker as well as an expert tax advisor. Our aim is to provide UK contractors with the assistance and service with IR35 issues they need as well as sustaining excellent quality and competitive premiums in the contractor insurance market.

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