IR35 and employment status – legal developments in the Court of Appeal

When deciding the IR35 issue and whether or not your worker is inside IR35 and off-payroll (ie self-employed), what do you need to know when deciding the status of your workforce?

The first question is to identify the actual contractual terms under the contractor’s services are supplied by the intermediary personal services company to the end user.

From then on it is a matter of interpretation! For a contractual relationship to exist there must be an actual agreement that the employee will provide their own work and skill for the benefit of the employer in consideration for which they will receive a wage. This is called mutuality of obligation. For an employment agreement to be in place there must also be an element of control; the employer has to control what the employee does. If these two pre-conditions are satisfied then there is still a further test. The court will then look at the ‘other provisions of the contract and whether they are consistent with the existence of a contract’. This can include many things (“an accumulation of detail”) in order to reveal the answer to the question ‘is the worker in business on their own account? This can include whether the worker involved was known to carry on a business, profession or vocation on their own account as a self-employed person outside the engagement in question. It can also include whether the worker is ‘part and parcel’ of the business in question. Please note that statements contained within contracts of engagement which attempt to stipulate that they are not contracts of employment or that the worker is self-employed should be ignored. The facts will reign!

Disability, adapted furniture and hot desking!

Here are some details from a very recent case that you may find to be unsurprising! A disabled House of Commons manager was provided with specially adapted workplace furniture (a modified workstation)  in order to reduce the impact of disability which include musculoskeletal pain. A very sensible reasonable adjustment of which we are all familiar. However, the office was overcrowded (this was pre-pandemic) and for periods of ill-health absence, other employees were allowed to use this manager’s desk, chair and equipment. This meant that the employee was frequently required to adjust her workstation and chair. This was difficult for the employee to do. The employee left a polite noticed encourage her colleagues to hot desk elsewhere. Her employee commenced disciplinary proceedings against her for leaving the ‘improper’ note. This employee succeeded in her claim that this was discriminatory treatment. The Tribunal agreed that it was not only less favourable treatment to embark on a disciplinary process and but also a failure to make reasonable adjustments. If an employer goes to the trouble to make bespoke adaptations to a workstation for a disabled employee, then it is wise to that equipment as being designed and intended for that employee alone.

Have you got discrimination issues at work?

If you would like to avoid such issues above and other forms of discrimination why not join our latest Wednesday Wisdom Webinar. Held by our own Rebecca Dennis, we have a webinar on ‘Discrimination – how it happens and how to avoid it’. Sign up here.


The information contained in the above article was correct at the time of publication. To ensure you are kept up to date with changes to employment law matters, click here to sign up to our dedicated employment database.

The information contained in the above article was correct at the time of publication. To ensure you are kept up to date with changes to employment law matters, click here to sign up to our dedicated employment database.

Learn more about Rebecca

All the articles above are written by our Partner & Head of Employment Rebecca Dennis. Rebecca’s professional background is unique in that she worked for more than 20 years as a barrister providing legal advice, drafting and advocacy for her clients and more recently provided specialist trouble-shooting services on employment law and employee relations at a leading international HR outsourcing company.

What Rebecca doesn’t know about Employment Law really isn’t worth knowing.

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