The IR35 Rules
Navigating the intricate landscape of UK tax legislation is no easy feat, especially for contractors. Amidst the myriad of regulations, one term stands out prominently: IR35. But what are IR35 rules, and how do they work?
In this comprehensive guide, we delve deep into the heart of IR35. Whether you’re an aspiring contractor or a seasoned veteran seeking clarity, this guide aims to demystify IR35, empowering you with the knowledge to make informed decisions and remain compliant.
What Are The IR35 Rules?
When performing a status assessment, the party responsible must consider the written contract and the day-to-day working practices against a framework known as the ‘IR35 rules’.
Against these rules, the assessor must decide whether the engagement would be one of employment or self-employment without a limited company intermediary. Is the contractor running a genuine business, or are they operating as a disguised employee?
Three fundamental principles need to be considered: (i) supervision, direction and control, (ii) substitution, and (iii) mutuality of obligation.
Supervision, Direction and Control
Supervision, direction, and control focuses on the manner in which someone carries out their work. It concerns what has to be done, when and where it has to be done, and how it has to be done. If a contractor maintains autonomy over these things, it would indicate self-employment. If dictated to them, it is suggestive of an employment relationship.
Supervision involves oversight. For this to apply, the contractor must be closely monitored while performing the requested tasks to ensure they are performed correctly. It can also involve mentoring. Is a more senior employee assisting in developing skills and knowledge?
Direction involves being made to perform the work in a specific way, dictated by detailed instructions, ongoing advice and coordination.
Control is dictating what work a person does and having the power to move someone from one job to another.
When considering supervision, direction and control, contractors should ask themselves:
- Does the contract specify when I can start and finish, or the days I must work?
- Does the contract state that the client can oversee my work and give guidance on how to complete it? Does anyone have the right to tell me how to do my job?
- What are the practical arrangements of the contract? Am I providing services for the agreed job or working on different tasks as the client sees fit?
If the answer to any of the above is yes, the contract could be inside IR35. For a contract to fall outside IR35, contractors should have freedom over how they complete their work. HMRC provides several fictional examples to help reviewers with their assessment.
Substitution
Genuine outside IR35 contracts are business-to-business arrangements, so the engaged limited company should have the right to provide any qualified individual to deliver the service. If the contractor is unavailable, they can provide a substitute to complete the work in their absence.
For the purposes of IR35, a substitute is a short-term resource used to cover the contractor during periods of holiday, illness, or other unexpected absence. A substitute does not necessarily have to be an employee of the limited company; it is perfectly acceptable to engage another contractor as long as they have an appropriate skill set.
The contract between yourself and the client does not change; they engage your company, and your company covers the costs of the substitute.
Exercising the right to use a substitute is considered a ‘silver bullet’, breaking the chain of personal service. It is a strong indicator of self-employment and being outside IR35. That said, HMRC do distinguish between genuine rights of substitution and ‘sham clauses’.
A right of substitution is only likely to exist where the client does not care from one day to the next for the duration of the contract who turns up to carry out the work, provided that whoever does so is suitably qualified and experienced.
However, the fact that a substitution clause is ineffective or a sham indicates that personal service is required. At best, this would only be considered a minor pointer to employment.
When considering substitution, contractors should ask themselves:
- Does the contract contain a specific ‘Right of Substitution’ clause?
- Could I bring someone else in to complete the contract, or do I need to do the work yourself?
- Does my client only want me or my services more broadly?
For a contract to fall outside IR35, a contractor should be able to provide a suitably qualified substitute to complete the work in their stead.
Mutuality of Obligation
Mutuality of obligation exists when an employer has a legal duty to provide work, and the employee has a legal duty to perform said work. It is essential in a traditional employer/employee relationship as it protects employees, guaranteeing their right to an agreed salary and employment benefits.
In a business-to-business relationship, such mutuality of obligation doesn’t exist; limited companies are engaged to perform a specific task. For contractors, this means that once you’ve completed a project, you’re under no obligation to work on further tasks, and the client is not obligated to offer them.
Mutuality of obligation is incredibly ambiguous. HMRC state that without mutuality of obligation, “there can be no contract of any kind”. It exists in some form, even if someone is contracting outside IR35. As such, HMRC’s CEST tool doesn’t explicitly consider mutuality of obligation.
When considering mutuality of obligation, contractors should ask themselves:
- Is there an obligation on the employer’s end to offer work, and do I need to accept it?
- Can I work for other clients simultaneously, or is this restricted?
For a contract to fall outside IR35, it should be a contract for services rather than a contract of service. If the client is legally required to offer work, or the contractor is limited in who else they can work for, the contract is likely one of employment and so inside IR35.
Outside IR35 contracts should outline the obligations of both parties to ensure that there is no obligation for further work when the contract ends.
Working Practices
Supervision, direction and control, right of substitution and mutuality of obligation are all contractual clauses reviewed during an IR35 determination. However, there is no point in having a watertight, ‘outside IR35’ contract between yourself and the client unless it mirrors the reality of the day-to-day working arrangements.
When performing an IR35 enquiry, HMRC reviews both the contract and your working practices to establish if the assessment is correct. The contract must reflect your working practices – essentially, the clauses must be genuine.
HMRC consider additional criteria when working out IR35 status:
- Equipment: HMRC often tries to argue that if the client provides equipment and you don’t use your own, you’re a disguised employee.
- Financial risk: Self-employed contractors usually take a degree of financial risk, like any other business, and there’s usually a requirement to have professional indemnity insurance.
- Part of the organisation: Does the contractor attend Christmas parties? Are they part of the company structure? If the contractor has a team reporting to them, it could indicate employment.
- Exclusivity: Does the contractor work for other clients? Typically, the self-employed can work for multiple clients at once.
- Genuine business: This determines whether the contractor runs their limited company as a business. For example, does it have a website
It’s important to note that the above points are insufficient to indicate inside or outside IR35.
Using your own IT equipment often isn’t practical; clients frequently insist that contractors work on their equipment. This scenario is often unavoidable, especially for IT contractors. It’s not an indicator of being inside IR35. Instead, it is usually a prerequisite for ensuring security protocols and limiting access to secure data.
The same can be said for having a company website. If you are a contractor who sources most of their work via job boards and recruitment agencies, you may have no practical reason to have a company website. Building one for the express purpose of appearing outside IR35 holds no sway should HMRC open an enquiry.
Notice Periods
As notice periods are reminiscent of an employee and employer relationship, the ideal outside IR35 contract would not have one. Either party should be able to terminate the contract without notice.
However, enforcing no notice periods is not always practical, and many clients insist on including them in the contract. In such situations, the notice period should be as short as possible.
Summary
Contractors should remember that genuine outside IR35 engagements are business-to-business relationships, with the contract being one ‘of service’ instead of ‘for services’. The key areas that need to be present for the contract to be outside IR35 are:
- Supervision, Direction and Control: The contract should stipulate that the contractor can provide services via their own methods;
- Substitution: There should be a genuine right of substitution clause; and
- Mutuality of Obligation: The obligations of both parties should be clearly outlined to ensure there is no obligation for further work when the contract ends. An end date should be stated.
A well-drafted contract that clearly outlines the above is not enough in itself; you need to demonstrate that the clauses mirror the actual working practices.