With so much uncertainty still surrounding the conditions of IR35, it’s hard to keep it clear and STAY AHEAD OF IR35.
How do we need to use iR35 with our own contracts?
There are three key areas that need looking at from an IR35 perspective within contracts which are as follows:
- That the agreement provides the right to substitute.
- That the agreement confirms that the client does not have any supervision or control over the work
- That there is no mutuality of obligations between the parties
This is explained a little bit more detail below.
Whether or not the contractor engaged for the work can provide a substitute in their place can determine if the assignment would fall inside or outside of IR35.
The contractor should be able to send a substitute to complete the work on the client’s behalf or reassign the work. If the contractor cannot make a substitution and must perform the work himself then this could bring the assignment inside IR35.
If genuinely a substitute can be provided, then the contract is likely to be outside the scope of IR35.
Supervision, Direction and Control:
The client cannot supervise, direct or be in control of the contractor during the assignment. The key things to look out for within a contract;
- The contractor’s work will be overseen by the client and that it is specified how that will be performed.
- That the work will be supervised by a line manager or a company employee.
- Instruction on how the work will be performed and the ability to move between task to task.
- Any clauses that specify any rights of control or supervision over the contractor.
it is important to make sure that there is wording within the contract to indicate that the contractor will not be under the supervision, direction or control of the client.
Mutuality of obligation:
When a company is obliged to provide paid work and a contractor is obliged to then accept and complete the work, this is considered mutuality of obligation.
The contract must not include any mutuality of obligation; an example of this would be “exclusivity” of work clause. This would prevent the contractor from taking on other work with multiple clients at one time.
A contractor must be able to work from project-to-project, with no obligation to carry on working for the client after the work is complete.
A contractor also has the right to terminate a contract part-way through. An employee, on the other hand, can only work for one company and has an obligation to carry on working when their tasks are complete.
The contractor isn’t required to take on any future work and can refuse to perform any more work, the contract should reflect this arrangement.
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