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Markel Tax

18 Jun 2018

IR35 – Implications of health and safety training

My client wishes to put some of his contractors on a health and safety training course. Would the fact that the client is paying for the contractors to go on this course be detrimental when trying to show that the contractor is deemed to be outside of IR35?

It is standard practice for end clients, in order to conform to their own insurance requirements and as part of their internal induction process, to request that contractors receive health and safety training. This training is required in all work places and is usually offered in one form or another to anyone working on site be they contactors or otherwise.
Whilst HMRC may suggest that the training in their arguments under control is a pointer towards IR35, it is an argument that we would strongly resist, as conforming to health and safety standards is a condition that you would expect in any contract. It is highly unlikely that any end client would engage the services of a contractor who would refuse to do this.
This viewpoint is supported in MAL Scaffolding v HMRC [2006] SpC527, which established that direction and control that is not within the remit of the engager is not indicative of a right of control over the worker. Here the judge stated ”in particular, I do not accept the argument that the site agents could be regarded as carrying out the control function over the workers of MAL Scaffolding. The site agents have independent statutory safety obligations that apply to employee and self-employed worker alike”.

We believe that conforming to end client health and safety guidelines has little bearing on the three mainstays of IR35 i.e. personal service, control and mutuality of obligations.

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