One of the most important factors in determining the IR35 status of an employee is the amount of control exercised by the client over where, when and how an individual provides their services. Contractors and freelancers should have more influence and control over how their services are provided and executed – not the client.
There are a few factors to consider when looking at Control.
Can the contractor decide when they will complete the work? Whilst it’s acceptable for truly self-employed workers to complete an assignment within a specific timeframe agreed with the employer, they should not be under any control or supervision. It needs to be clear that the worker can execute the work without supervision of the employer, and in their own time.
Who controls where the work has to be completed? Can the worker complete the work from home or their office, or are they required to work on site? There should be a good degree of flexibility in this.
Who controls how the work is completed? Self-employed workers are generally employed to provide specialist services or expert advice, and therefore expect to work more autonomously. If the employer tries to exercise the same control they would have over an employee, the self-employed worker could be argued to be an employee and therefore inside of IR35.
Although the above may seem pretty clear-cut, it’s not always the case. As the client is requesting the services of the worker, it’s only natural they illicit a degree of control, which may be in the form of guidelines. For example:
- Kate is self-employed, despite having to work during certain hours.
Kate is hired as a social media expert for an animal charity. She will need to reply to all customer queries on social media during the hours of 9-5 Monday – Wednesday, which is in-line with the opening hours of the business. Kate can work from home and uses her own equipment. Kate also works for other clients when she’s not working for the animal charity. Kate chooses her days off.
- Hanna is an employee.
Hanna is hired as a social media expert for an animal charity. She will need to reply to all customer queries on social media during the hours of 9-5 Monday – Wednesday. Hanna works from the office, but sometimes works from home as agreed in advance with her manager. Hanna also has another job on the weekend. Hanna has to get her days off approved.
Some extra considerations for Control also look at things such as, who owns the equipment, exclusivity clauses, working hours, line management, and holiday approval.