After recent IR35 cases have been decided, certainly Christa Ackroyd Media Limited, it has been suggested in the media and in articles that perhaps the contract should have been written in a better way. It has also been suggested that perhaps had Christa Ackroyd had other engagements this would also have helped her cause.
So are these statements correct? Will a well-written contract save you on an investigation?
Of course have a well-written contract which covers all of the relevant areas, especially Personal Service, Control and Mutuality of Obligations is an important factor and should never be overlooked. However, one does not rely on the contract alone however well written it may be. Advisers and reviewers of contracts will always point out that the contract must be a true reflection of the actual situation that happens on the ground. It was recognised in Autoclenz V Belcher (2011) that a shame contract will never defeat an HMRC investigation, nor should it. This is a danger with Agency Standard contracts that will cover the salient points but you must consider if indeed these are relevant to your actual work situation. It is very dangerous to rely on a well-written contract knowing full well that in reality, a substitute would never be accepted by your client. Or perhaps the contract gives you absolute autonomy as to how you complete the work but in fact, you are actually carrying out daily instructions on how work in undertaken. So in my opinion, however well written a contract may be, if it is not a true reflection of the actual work situation, it would be worthless.
Does having multiple contracts help the situation?
Of course, it is common knowledge that if you have more than one contract, you must be genuinely operating as a business and could never be a disguised employee. Simply not true, each contract must be considered separately and in isolation of others. It would easily be possible to be classed as outside IR35 for one contract yet inside on other contracts that may be running concurrently. It would also be possible that one contract classed as outside of IR35 might follow on from another with the same client that was caught by IR35. Each separate engagement must be reviewed, even if it is with the same end-user client.
We will wait to see if the Public Sectors responsibility to decide if contracts are inside IR35 is extended to the Private Sector but is it widely expected that this will be the case at some stage in the future.
If you are concerned about your current contract and would like it reviewed to ensure that it does match the actual work situation, please get in touch with me at duncan.forsyth@lamberet-chapman.co.uk or call 01376 326266.
Disclaimer
The views expressed in this article are the personal views of the Author and other professionals may express different views. They may not be the views of Lambert Chapman LLP. The material in the article cannot and should not be considered as exhaustive. Professional advice should be sought in connection with any of the issues contained in the article and the implementation of any actions.