ESM0112 - Procedural aspects of status cases: advice about signed written contracts

Where an engager approaches you for advice about a signed written contract, not a draft contract, and, taken at face value, it is clearly a contract for services (self- employment) then you may give an opinion. However, you should add the following when giving your written informal opinion

‘My view assumes the written terms reflect the true arrangements. If the contract is not fully acted upon in practice or there are other oral or implied conditions which have not been presented to me, my opinion may be modified. As part of its normal compliance activities, HMRC reserves the right to check that the working arrangements are as set out in the contract.’

Do not however give advice on cases where an employer proposes to change the status of existing employees. You can comment when the changes have been implemented.

Make a permanent note so that you can trace the correspondence etc later. Where you feel it is appropriate, make arrangements to check on the facts after a suitable interval.

See the guidance at ESM0127 as regards the handling of enquiries about draft contracts or hypothetical cases.

For IR35 cases, see the guidance at ESM3280 onwards.