Q&A: A client questions the implications of sending his contractors on a H&S course

    As tax becomes ever more complex and challenging to keep up with, our in house team of former HMRC Inspectors are regularly asked technical questions relating to investigations, disputes and status. Here, one of the team answers a question about IR35.

    Q: 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 seen as detrimental when trying to show that the contractor is deemed to be outside of IR35?  

    A: End clients, to conform to their own insurance requirements and as part of their internal induction process will request that contractors that are engaged in providing their services to them receive health and safety training as part of that induction process.  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 try and include this training in their arguments under control as a pointer towards IR35, it is an argument that I would strongly resist, as conforming to Health and Safety standards is a condition that you would expect in any contract as 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 direction and control that is outside the control 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”.

    As such in my opinion conforming to end client health and safety guidelines has little bearing on the three mainstays of IR35 i.e. personal service, control.

    The answer was provided by Nigel Nordone, an expert in IR35 and status issues and ex HMRC Employer Compliance Inspector.