Will a risk-assessment impact my IR35 position?
Q. I worked from my home office during the COVID-19 lockdown period. The client is now reopening its offices to staff and contractors, and I will have reason to travel there. The client is asking me, therefore, to complete risk-assessments for both travelling to their office and for being inside their office. I am reluctant to complete the travel risk-assessment because how I travel to their offices is my business, not theirs. If I do complete their form could this be a sign of ‘Control’ by my client and thus endanger my outside of IR35 status?
A. Under normal circumstances, as you mention, how you travel to and from your client’s office is irrelevant. As a genuine contractor working outside the scope of IR35, you should, in theory, have the right to decide where you provide your services from, your method of travel and how often you visit the client’s premises.
However, in this scenario and due to the sensitive nature of COVID-19 and the impact an outbreak could have on a business, it’s unlikely that informing them on your method of travel and completing a risk-assessment would endanger your IR35 status. While your client may be asking all employees to complete these assessments, they could be asking all visitors to the office to do the same – whether contractors, suppliers or self-employed maintenance workers.
That said, it’s certainly worth checking to see if there are risk-assessments for employees specifically and risk-assessments for contractors or service providers also. If so, insist that you are able to complete one that isn’t given to employees. Should you run into any problems further down the line, showing that you were treated as a visitor or a contractor rather than an employee should further cement your outside IR35 status.
Control, like most aspects of IR35, is rarely black and white. And should your contract and working practices clearly show that you do not fall under the control of your client, completing a risk-assessment shouldn’t theoretically jeopardise your status as a genuine contractor. However, as touched upon, there’s no harm in having the conversation with your client and asking to complete one for contractors or other parties who are not employees of the business.