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I have one right now re a Qualified Person, he does multiple engagements for pharma companies, in effect auditing batches, he might go to client, spend 2-3 days at most, sign report, do another somewhere else in world, repeat over and over, then return to trust later in year for say another 1-2 days to do similar re different batch; the role is akin to an auditor, carries PI cover and screeds of regulation.
https://en.wikipedia.org/wiki/Qualified_person_(European_Union)
As part of his client list (20-30 entities) he has done a couple of NHS Trusts, maybe 2 days then 3-6 months then another 1-2 days, these are all discrete engagements, possibly 4-5 days in a year per Trust.
Currently one NHS Trust is arguing , from their "tests" that this is within IR35, it evidently is not, it is like saying that PWC ,running their internal audit function, is within IR35. ( Years ago a firm I was with attended at a government entity each month doing internal Audit function, we were cheaper than in house, two of us for 1-2 days a month)
So what will happen, well right know the Trust looks like it is going to get told to stuff it, the fees are maybe in a year about £2,000 in total per Trust, in the scale of the business (80% of turnover from rest of world) they look like they are going to become more trouble than they are worth, so given not that many QP qualified in the UK either they find one who will play ball or they can get an employee to twiddles his thumbs most of the year and pay him £60-£70k per annum plus all his CPD costs etc.
This is all a farce.
Sounds like this is being dealt with by a box-ticker. If your client really does have such rare skills, he should escalate this in the Trust as high up as it will go. The managers with the real say probably aren't even aware of it as they delegate such matters to their minions.
To be honest, MOO is a bit of a red herring as for 99% of contractors it almost certainly does exist. Remember, it can exist within an individual assignment. MOO does not cease to exist simply because the client is under no obligation to extend the contract or to provide further work.
However, if they can send you home without any pay or notice due to computer downtime or other such reason, then there might indeed be no MOO. There was an IR35 case a few years ago (Spencer I think) where that was a factor.
The ESS was actually quite forgiving as you could avoid IR35 just by claiming control of the work. The problem of course was persuading the client to a) assess you individually, b) use the ESS, and c) agree with you.
I haven't run through the CEST yet so not sure if that is still the case, but assuming it is, contractors should be proactive and present their clients with their own CEST results rather than waiting for their client to inform all their contractor staff how they intend to play it.
Speakers at Accountex this year were fully expecting the new IR35 rules to be rolled out to the private sector in the very near future and this prospect was mooted in the Telegraph a couple of weeks ago. We can only wait and see what is in the Budget on 22 November.
Sounds like this is being dealt with by a box-ticker. If your client really does have such rare skills, he should escalate this in the Trust as high up as it will go. The managers with the real say probably aren't even aware of it as they delegate such matters to their minions.
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It has gone as high as the head of the research team it is for (it is sign off re a batch of radioactive isotope used for research purposes), whilst he is supportive re my client's position he cannot get past the immovable object that is the accounts team; them is the rules, is the rules .
I would not say people with Qualified Person status are rare but they certainly are not plentiful.
Can't he go above their heads or is his job not worth it?
Perhaps your client could write to the Chief Executive of the Trust himself, or someone else with the power to over-rule the box-tickers if he can get hold of a name.
Money is usually fairly persuasive, especially in these cost-cutting times. If he can make out a good financial case, I'm sure strings can be pulled.
I can't get my head round why HMRC has become such an incompetent organisation. I have witnessed the slow decline towards incompetence for 48 years because my first interactions with the Inland Revenue were in 1969. I think the rot set in around the turn of the century. But I don't really understand why this has happened. Is there anyone who has worked in the IR/HMRC and witnessed the decline from the inside who would be willing to offer an explanation?
It's because they got rid of their most knowledgeable staff to save money, automated everything in sight and lost all local knowledge by centralising their operations. The merger also probably had a lot to do with it.
Mutuality of Obligation is controversial because so many judges have commented on it without any definitive statement of what it is. Is it an essential of the employment relationship - the obligation of an employer to provide work for an employee to perform to receive reward? If so then zero-hours contracts do not contain mutuality in that sense. Or is it present in EVERY contract of every type - simply the matching existence of offer acceptance and consideration passing from the promisor to the promisee? You can find judicial precedent for both of these approaches and if the second is taken as a characteristic then there would always be MOO in every example that CEST is asked to rule on.
On the other point, the evident decline in effectiveness of HMRC taking place around the millennium this was when HMRC was created from the merger of IR and C&E - look up the number of jobs lost resulting from the merger - 4,000 from C&E but a huge 14,000 from IR - C&E seemed to get the upper hand - explains a lot?
I left the IR just before the merger but senior colleagues reported afterwards that line managers were introduced from Customs who had no technical knowledge at all and were incapable of giving effective leadership. In the 90's the focus was on re-inventing taxpayers as customers. Every month the number of unanswered letters received more than 14 days earlier had to be counted. Fifteen years later it became impossible to get a reply to a letter sent in months before. At least there is the comfort of knowing the drive against tax avoidance has been such a huge success.