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IR35 Chronicles XI

This is part eleven of our serialisation of an IR35 enquiry. To access the previous parts please visit our IR35 Chronicles Index.

We pick up from last week, part way through the meeting between Fiona Pilkington (FP), Phil Jacobs (PJ), both of BIG IT and Mr Turpin (DT), James Hind, both of HMRC.

DT:  You said that all new recruits, whether they be temporary or permanent workers, are given a copy of the staff handbook. What sort of internal rules and guidance are contained within that document?

FP:  Things like working hours, dress codes, disciplinary procedures, internet policy, confidentiality matters etc. The type of information you would find in an average staff handbook.

DT:  Would it be possible to let me have a copy of the handbook?

FP:  Yes, I'll give you a copy before you leave.

DT:  Do all rules and guidance contained within the handbook apply to all staff universally?

FP:  Some of it is common to both permanent and temporary staff but there are some rules that are unique to permanent employees.

DT:  Can you give me an example of the type of rules that would only apply to permanent staff?

FP:  The one that springs to mind immediately is disciplinary procedures. As contractors are self-employed this would not apply to them.

DT:  Would you have allowed Mr Down to sub-contract any of his work?

FP:  As a matter of general principle, no. Once BIG IT has entered into a contract with someone we expect them to deliver the service uninterrupted, where possible, for the sake of continuation, efficiency and convenience.

DT:  Would this policy/approach extend to the use of substitute workers?

FP:  What do you mean by that?

DT:  If, for instance, Mr Down was unable to carry out his work, say because of illness and there was a particular deadline approaching, would you have allowed him to send someone in his place to get the job done?

PJ:  In the first instance, we would assess how long he expected to be away from work. If it was only going to be a matter of a few days then we could probably put his work on hold.

DT:  What would happen if the absence was more long term?

PJ:  We would most likely work around the situation depending on how long he was away from work. If it was a much longer term, then we would terminate his contract and find someone else via the agency.

DT:  So are you saying that, under no circumstances, BIG IT would ever allow a replacement worker to be sent in the place of a contractor?

PJ:  As Fiona has already said, we are looking for efficiency and part of that is achieved through continuation, so, I would be resistant to such a suggestion. Also, when we take on a new member of staff, we insist on them being vetted for security reasons and this can sometimes take a few days to complete before someone can start working on BIG IT sites.

DT:  So that would rule out the possibility of a contractor sending a substitute worker for a spell that was only likely to last 1, 2 or 3 days?

PJ:  Absolutely, and maybe a bit longer than that.

DT:  What would happen then when someone wanted to take a day or two off or even a holiday?

PJ:  We try to discourage the taking of leave at times when we are very busy. I'm not averse to a contractor taking holiday but I do insist that they give advanced notice of any leave requirements, so that my Project Managers can plan their work accordingly.

DT:  What sort of notice period do you insist upon?

PJ:  About 3 – 4 weeks.  

DT:   Would a staff member be able to engage someone to assist them with their work?

FP:  Permanent employees can always ask their colleagues to assist them.

DT:  That's not quite what I meant. If a contractor wanted to bring in someone to help them would you allow this?

FP:  That might prove difficult if they didn't have security clearance to work on site and it's unlikely that that would be given because BIG IT's contract is with the contractor themselves.

DT:  What about the use of an assistant off site?

PJ:  That might prove difficult because of the company's confidentiality and security policy. Very rarely do we allow members of staff to remove documents or secure information from company sites.

DT:  That leads me, quite nicely, on to home working. Is this permitted?

FP:  We don't employ anyone to work from home. All BIG IT staff are expected to work at company sites.

DT:  Does all your workforce have to adhere to office and site hours?

FP:  Absolutely and these are stipulated in the staff handbook.

PJ:  A lot of the project work is carried out in a secure environment, so a site can only be accessed during core hours.

DT:  What are those core hours?

PJ:  There can be some variance from site to site but here we work 08:30 – 17:30, Monday – Friday.

DT:  Is overtime permitted?

PJ:  If required and essential to the completion of a project, then yes, but only upon authorisation. This usually only happens when a client has amended or altered their specifications.

DT:  In such a case, where priorities change, can you tell a worker to carry out a task outside of the contractual terms?

PJ:  Indeed. The client’s satisfaction is of utmost importance to us, so if there is something that needs doing urgently then time is of the essence and we do everything we can to ensure that they are accommodated.

DT:  Would Mr Down have been supervised?

PJ:  Unlikely. That's why we engage skilled IT workers because they don't need their hands holding or anyone stood over them telling them what to do next.

DT:  If a worker carries out a piece of work that is not to your liking can you overrule them?

PJ:  Most certainly. If their work does not meet the specification then we would instruct them as to how we expect the work to be done.

DT:  How is the work allocated?

PJ:  Really all depends on the discipline involved. With IT workers engaged on a project, it tends to be task related. There are normally a number of phases within each project and at the end of that phase we carry out our testing. To achieve completion of a particular phase each worker is assigned a number of tasks.

DT:  So a worker cannot decide on what needs to be done?

PJ:  We tell them what is required and when each task needs to be delivered by and they are then left to get on with the job.

DT:  Is their work checked by anyone?

PJ:  Only really at the testing stages. Each project team will organise regular weekly meetings so that they can discuss and iron out any problems and check on progress.

DT:  If a worker considered there was additional work that needed to be done that was not previously specified could they simply go ahead and get on with the work themselves without the need to consult with you?

PJ:  Certainly not. We respect their opinions but would require them to discuss this with us first and obtain our approval.

DT:  Would a worker be able to terminate their contract early for whatever reason?

FP:  No. Once they are contracted to us then we expect them to see it out until the termination date. Their contracts will contain specific termination clauses and notice periods. If someone wanted to terminate mid-contract, then we would want at least 1 – 2 months notice.

DT:  Once a contract has come to an end is there an expectation of either party that the working relationship will continue?

PJ:  That depends on the work available and whether or not we value their workmanship. If someone had done a particularly good job for us and we had other work coming up, then I would look to retain their services.

DT:  What would happen to a contractor if a project was completed ahead of schedule?

FP:  Their contract would be terminated early.

DT:  Without any pay?

FP:  Yes.
PJ:  But, as I just said, if we valued their services we would probably look to utilise them within the company elsewhere, if that were possible.

Next week:  Tying up the loose ends

By Andy Vessey

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