IR35 Status Assessment - anonymous

Client

PSC / Service Provider

Fee Payer

Worker

SDS review frequency

Start Date

End Date

Service Title / Description

Question-1

If a person is an office holder or an employee in an organisation, then the nature of the contractual arrangement is not one of a contract for services and so off-payroll rules will apply.

Help

Will the worker be an office-holder or an employee in the end client organisation? Read HMRC’s definition of an office holder here: https://www.gov.uk/employment-status/office-holder

Yes No

Question-2

The off-payroll working regulations only apply where a contractor’s limited company or Personal Services Company (PSC) is the vehicle for the provision of the contractor’s services.

Help

Does the worker intend to supply their services via their own limited company i.e. a personal services company (PSC)?

Yes No

Question-3

If the worker is being engaged in a capacity that will be required to be resourced indefinitely / beyond the point at which the contractual obligations for this engagement have been fulfilled, this firmly indicates personal service and that the worker will be part and parcel of the organisation. A good example of this is interim management roles, where the role is required ongoing, irrespective of whether or not the current incumbent is performing it.

Help

Is the worker being engaged by the end client in what amounts to an indefinite job role as opposed to the delivery of specific services related to a program, project or initiative that is not indefinite and has or will have a defined end date?

Yes No

Question-4

The true nature of a contractual arrangement between worker and end client is always scrutinised in any employment tribunal. If the nature of the engagement is characterised by the worker and / or those around them in ways that suggest it is akin to employment, this can be interpreted as an indicator of pseudo-employment.

Help

Contractors that are outside IR35 should not introduce themselves as working for the client organisation. Is the worker acting independently, on the end-client’s behalf, and expected to introduce themselves as such when asked?

Yes No

Question-5

Backed by numerous employment status tribunal case law precedents, a robust, unfettered contractual right of substitution that can and would be demonstrably executed by the worker in compliant manner, eliminates any notion of personal service and defines the engagement as a contract for services as opposed to a contract of service, even if it is never used and there is no firm plan to use it.

Help

Will the end client sign a Right of Substitution Declaration with the worker on the 34square platform?

Sample document here. See FAQs here.
Right of substitution is in fact a client benefit. If you aren’t sure why, this article might help. If you answer ‘No’ to this question and then answer ‘Yes’ to question 6 and ‘No’ to question 7, you would be well-advised to change this response to this question 5 to ‘Yes’.

Yes No

Question-6

Help

Does the worker have the right, acknowledged and accepted by the end client, to utilise a substitute worker for the provision of the contracted services?

Yes No

Question-7

If the client has the unequivocal right to reject a substitute i.e. to refuse to allow the worker to execute a substitution the worker deems necessary to safeguard service delivery and contractual obligations, then the right of substitution will be interpreted as ineffectual or even a sham, such that the right may as well not exist, thus removing right of substitution as a driver of an outside IR35 determination. A client does have the right to reject a substitute based upon reasonable grounds that services will be or have been unsatisfactorily compromised.

Help

Does the end client have the right to reject the substitute for reasons other than a reasonable judgement that the substitute is unsuitable and/or unable to deliver the contracted services?

Yes No

Question-8

For a substitution to support the existence of a contract for services and therefore outside IR35, the substitute must be engaged and paid for by the party providing those contracted services.

Help

Would / will the substitute be engaged and paid by the worker’s limited company as opposed to by the end client or an agency?

Yes No

Question-9

If the worker is deemed responsible for ensuring the substitute can effectively deliver in their place, this emphasises that the services remain the responsibility of the worker’s PSC, whilst also strengthening the case in terms of financial risk and being in business on their own account.

Help

In the event a substitute is engaged, will the worker sufficiently prepare and onboard the substitute such that they are able to perform the services from day one, at their own cost with no charge to the client.

Yes No

Question-10

End client acknowledgement and acceptance that contractually it is the worker’s limited company (PSC) that carries the obligation to deliver the specified services characterises the engagement as one of services and not for service, strengthening the case that no personal service exists.

Help

Does the end client acknowledge and accept that it is the worker’s limited company (PSC) that carries the obligation to deliver the specified services?

If you answer ‘Yes’ to this question and you answered ‘No’ to question 6 or ‘Yes’ to question 7, you may wish to revisit and amend your response. You are otherwise somewhat contradicting yourself. If you have embraced the right of substitution, then you should answer ‘Yes’ to this question.

Yes No

Question-11

The extent of financial risk a worker incurs in the delivery of their services is a useful indicator of whether or not they are truly a business providing a contract for services. Levels of financial risk that are clearly significantly in excess of those encountered by employees are a firm influencer of an outside IR35 status. Substantial financial risk has been and can be determined as sufficiently high that it justifies a worker is in business on their own account and is therefore outside IR35.

Help

Will the worker fund the cost of non-commuting travel and accommodation expenses in advance of being paid?

Yes No

Question-12

Help

Must the worker fund other business expenses such as software licenses, professional indemnity insurance, public liability insurance, or other costs necessary to deliver the services?

Yes No

Question-13

Help

Will the worker use their own equipment, such as computing equipment or other hardware, in the delivery of the services?

Yes No

Question-14

Help

Must the worker fund significant cost of specific materials required to provide the services, in advance of being paid? This may be the case in the construction industry for example.

Yes No

Question-15

Help

Must the worker fund the cost of significant equipment and / or tools (not including laptops) in advance of being paid, in order to deliver the services?

Yes No

Question-16

Help

Is the worker solely responsible for ensuring they are qualified and competent to deliver their services, with no training or guidance from the end client in that specific regard?

Yes No

Question-17

If an end client is deemed to or seems to have the same levels of control over how, where and when a worker delivers their services as it does for its employees, this can characterise the engagement as pseudo-employment and points towards inside IR35.

Help

Does the worker have considerable autonomy in terms of the methodologies, approaches and techniques deployed in the provision of the required deliverables, as opposed to being bound by the end client’s methodologies and procedures to the degree that employees are, notwithstanding that high standards of professional conduct and demonstration of competency are expected?

Yes No

Question-18

Help

Does the worker have a greater degree of autonomy and input than end client employees in respect of the number of hours worked and the locations from which their services are delivered, notwithstanding that there is an expectation of professional courtesy, collaboration and flexibility?

Yes No

Question-19

If a worker seems to be or is deemed to be part and parcel of the end client organisation, this is an indication of pseudo-employment and an inside IR35 status. Engagement characteristics that firmly align a worker with employees and employee processes point to pseudo-employment and inside IR35.

Help

Is the worker responsible for employee formal appraisals or disciplinary procedures in relation to the end client’s employees?

Yes No

Question-20

Help

Is the worker entitled to any of the corporate benefits awarded to employees?

Yes No

Question-21

If a mutuality of obligation is detected or can be discerned between a worker and the end client, this is an indicator of pseudo-employment and points towards inside IR35 status.

Help

Is there any mutual understanding or expectation between worker and end client that in the event delivery of the contractual obligations between the worker’s PSC and the end client being completed or no longer required before the contracted end date of services, the end client will continue to pay for the services until the contracted end date?

Yes No

Question-22

If a mutuality of obligation is detected or can be discerned between a worker and the end client, this is an indicator of pseudo-employment and points towards inside IR35 status.

Help

Is there any mutual understanding or expectation between worker and end client that in the event delivery of the contractual obligations between the worker’s PSC and the end client being completed or no longer required before the contracted end date of services, the end client will endeavour to allocate alternative work to the worker?

Yes No

Question-23

If a mutuality of obligation is detected or can be discerned between a worker and the end client, this is an indicator of pseudo-employment and points towards inside IR35 status.

Help

Is the worker obliged to accept work from the end client outside of the scope of delivery of the contractual obligations between the worker’s PSC and the end client?

Yes No

Question-24

If a mutuality of obligation is detected or can be discerned between a worker and the end client, this is an indicator of pseudo-employment and points towards inside IR35 status.

Help

Is the end client obliged to offer continued work to the worker even if delivery of the contractual obligations between the worker’s PSC and the end client has been completed or is no longer required?

Yes No

Question-25