ESM3280 - Opinions on contracts: introduction

The legislation will only apply where an individual’s services are provided in circumstances that would have been an employment if he or she had contracted directly with a client.

We have given an undertaking in the Inland Revenue Press Release of 7 February 2000 to give a written opinion as to whether the legislation applies to a particular engagement. We do of course expect the customer to supply us with all the information necessary to form an opinion.

The customer should send us copies of any contracts forming part of the arrangements together with any other relevant information. For example: -

• any other documentation relating to the working terms and conditions
• written statements from the worker and the client as to their views of the working terms and conditions with particular emphasis on what happens in practice
• the name of a contact at the client's office who can supply information about the working terms and conditions
• details of how the engagement was obtained and the recruitment procedure together with a copy of any adverts for the work in question
• a description of the nature of the services to be performed together with any job or work specifications for the contract
• copies of any tenders made by the intermediary
• details of any additional contractual terms not included within the written contracts, whether oral, written or implied
• details of how and who allocates the work and the role the worker plays in the client's organisation i.e. does he/she work alone or as part of a team
• other relevant information from the worker/intermediary. This might include for example the number of engagements held during the year; the number of different engagers; and expenditure on equipment etc necessary for the performance of the contract.

Where an agency is involved it is very unlikely that the customer will be able to supply a copy of the written contract between the agency and the client. In those circumstances, it is essential that ways in which evidence from the client can be obtained be explored with the customer.

From 1 December 2002, all requests for customer service opinions should be passed to the IR35 Unit at North East Metropolitan,, Fountain Court, 119 Grange Road, Middlesbrough TS1 2XA.

ESM3281 onwards provide guidance on giving opinions on contracts.