I run a small limited company which is primarily used for my own contracting work and that of my fiancee.
I have completed several contracts for software development over the course of the year and have continued to bring in earnings into the company. Recently my fiancee started working through the company on a short term content manager position. This work was found through an agency who we bill directly, we have no specific contract with the client that the agency found. My fiancee has the power to change her days and hours at will (obviously checking with the client first), and has exercised this moving from 4 days to 3 and 2 day working weeks depending on her availability. She currently has no other work, but is spending time on other things (wedding and study). She has been operating in this position now for a little over 3 months, and expects it to end sometime early in the new year, though the date is as yet undecided since the client is trying to hire a full time employee to fill the position. It was always made clear that the position was temporary and was just to fill-in while they tried to find an employee to take the position on.
For further background: I pay myself a maximum of £600 per month, and pay her £400 to avoid national insurance payments since we don't intend to remain resident in the UK for much longer (we are UK passport holders, but intend to emigrate soon). We were advised to do this by our accountant. The rest we pay out in dividends to myself as I am the only shareholder.
I am concerned that without a clear contract stating substitution she will fall foul of IR35.
What advice would you offer? Should we demand the agency draw up a contract with a substitution clause?
Any help you could offer would be great, thankyou.