In sharing who we are, we'd like to start by explaining what we stand for. At 34square, we fully support the IR35 Off Payroll Working Rules. We aim to echo HMRC's efforts to ensure contractors are legitimately selling their services as businesses and are not disguised employees. We are perhaps a little more passionate than HMRC about preserving the rights of contractors to do so. We don't see ourselves as a way to combat or shield against the rules. We're an enabler, and we view IR35 as an enabler also. It's no accident that we don't have 'IR35' in our company name. And the 'square' in our name is a reference to a congregational outside space, not a geometric shape. At our core, we're a legal contracts process automation service provider. We furnish subscribed contractors / freelance service providers with an innovative capability for their limited companies to honour their contractual obligations with clients even when a main worker is not able to be present. We acknowledge that contractors may rarely, some perhaps never, execute an actual substitution. Nevertheless, having the capability to generate contracts in a few minutes, with end-to-end original contract integrity for all parties and a legally binding contract between limited company and substitute that ensures the substitute is legally entitled to be paid by the worker's limited company, is a reassuring benefit for all involved, especially the client. We of course do provide a robust IR35 assessment tool and process. Its purpose is to validate the integrity of outside IR35 status and provide the ability to clearly demonstrate and evidence incontrovertible outside IR35 credentials. We have no interest whatsoever in supporting or assisting contractors to operate outside IR35 where there is no legitimate case to do so. Fundamentally, we are committed to fuelling a thriving, compliant and credible outside IR35 channel for Personal Service Companies and for genuine freelance contractors that forego all of the security and protection of permanent employment the vast majority of people desire and covet, instead living day-by-day with the very real risks associated with running a business. Our Vision
In January 2020, 34 square was formed. We set out to provide British industry with a solution to optimally manage the impact of the IR35 off payroll legislation changes in place from April 2021. We knew from a colossal weight of research and dialogue, that most in British industry could not see the wood for the trees and swirling fog, when it came to navigating what to do in the face of the reforms. We lifted the swirling fog and showed you the wood. The intent was and is to remove all barriers in the way of safely engaging contractors outside IR35. As a result, we: Via a sophisticated IR35 assessment process and unique, groundbreaking contractor capabilities, provided clients and agents with a no-cost framework to predictably, safely and efficiently engage contractors outside IR35 and meet client status determination statement and reasonable care obligations. Neutralised the notion that a cornerstone of outside IR35 status, the right of substitution, is a sham or a loophole, by rendering the right and the robust capability irrefutable, whether used or not. Removed any potential for the right of substitution, a potential sole determinant of outside IR35, to be attacked and dismantled in a tribunal by HMRC. Our Substitution page explains how Right of Substitution is actually a benefit for clients, that is often misunderstood or misinterpreted by those clients. These FAQs also explain what clients are and more importantly, are NOT signing up to. We HAVE broken down the barriers to safe outside IR35 for contractors.
We have built a transparent, meticulously guided assessment tool, with explanations for why each question is asked, guidance about what engagement attributes to refine if you want to render an engagement outside IR35 or bolster the strength of that status. The assessment black box is dead. The conclusion and resulting status determination statement are explicit, with clear explanations of the impact of responses. We can help industry to understand the true meaning and benefits of the right of substitution. With us, clients can sleep soundly with the knowledge that if you have right of substitution in your contract, it's backed by a robust and evidenceable capability and intent to do so if ever required. We would be happy to have a conversation with any clients that are struggling with right of substitution and perhaps help them to understand the benefits. If the right of substitution is genuinely impractical, there are other safe paths to outside IR35 in our assessment tool, as long as your levels of financial risk and your contracts and working practices support them. Our Foundations
Our quest in pursuing our vision was to unearth everything there is to know about IR35 and off payroll legislation. That quest included: Over 1200 hours of research, legal and expert advice, encompassing consultation with four separate legal firms and many other industry experts. Meticulous qualitative and quantitative analysis of 1100 pages of case history and legal precedent from 36 tribunal cases. Pouring over all of the content on HMRC's Employment Status Manual pages. Scores of hours of testing in HMRC's Check Employment Status for Tax (CEST) tool and in other commercially available tools. The Essence of Our IR35 Assessment Approach
After more than 20 years, the notion that IR35 status determination is a mystical art, with an infinite list of variables and combinations that warrant artificial intelligence in order to fathom, is still at large and widely accepted. In reality, it's not a large or complex data set. As already stated, our assessment questionnaire helps you understand that data set and the IR35 status drivers, even to the extent it shares the engagement attributes and working practices you should explore in order to reach an accurate, fair and equitable outcome. Parties are well within their rights to derive or refine those attributes and practices for a particular status outcome, as long as they reasonably reflect genuine intent and subsequent reality. No engagement is by definition, inside or outside. 34square has published guidance in this area on The HR Director website. You can also read it in one of our blogs . HMRC Aims to Expose and Exploit the Cracks
Case law and HMRC’s position, supported by their IR35 assessment tool, CEST, mandate that an unfettered right of substitution can be a sole determinant of outside IR35 status. It rarely is, because HMRC often manages to find and exploit cracks, perhaps in contract wording and contradiction, witness testimony or even in practical feasibility issues. In the 36 tribunal cases we reviewed, there were 26 in which a right of substitution was absent or in which HMRC succeeded in dismantling it. HMRC won 17 of those 26 cases in which an unfettered, genuine right of substitution could not be established. In the other 10 cases, a genuine, unfettered right of substitution was established. HMRC lost them all. What that means is that with no strong right of substitution, HMRC win approaching 70% of cases. With a strong right of substitution they fail to fracture, they have won none as this goes to press. So… we have REMOVED all of the cracks
A Right of Substitution Declaration between contractor limited company and client, to avoid witness testimony issues and combat weaknesses in contract wording. A ground-breaking actual substitution capability, with process automation tools to generate legally binding contracts that legitimately oblige the substitute company to deliver the services, whilst the main contractor’s company retains overall responsibility to the end client. Inside IR35 carries risks and costs for clients. If as a contractor you encounter clients that still want to engage inside IR35, why not point them here and help to further their understanding? Many clients believe they aren’t paying more with inside IR35 or other PAYE routes. In many cases you aren’t. That’s the point. You’re paying possibly 15-25% LESS, but it’s costing YOU the same. Your money is working nowhere near as hard. And when you are paying for talent and effort, you often get what you pay for. Put another way, if your money isn't working hard... You otherwise need to pay substantially higher rates to be competitive. Most contractors will still prefer to be outside IR35 and so you risk missing out on the best talent or even losing vital resources and disrupting your change programs.
Adam Topham (left) and Ralf Willems founded 34 square early in 2020. They called upon skills and capabilities honed from almost five decades between them, of business process improvement and enterprise solution transformations, to derive an optimised contractor engagement model in light of the IR35 reforms from April 2021. They pulled together the required expert legal and technical resources to research, design, commission and launch the sophisticated and innovative 34 square platform. Adam is passionate about preserving the rights of contractors to sell their services through their limited companies on the open market. He is an equally ardent supporter of the legitimacy of clients’ right to procure such services outside IR35 and to harness the value of same, where there is no case to be argued that disguised employment is in play. He is grateful for the vision his business partner, Ralf Willems, brought to 34 square when he declared our team must know everything there is to know about IR35 and the phenomenon that is status determination. Through over a thousand hours of deep research into case law precedent, CEST and other assessment tools and the HMRC Employment Status Manual, and expert consultation with four separate law firms and other leading IR35 experts, Adam and Ralf are now deeply knowledgeable on the topic. What was the IR35 reform and what did it mean? Since 2000, when IR35 legislation was implemented, contractors that sell services via their own limited companies have been deciding whether to sell them as a limited company and treat and pay tax on the revenue as a company (outside IR35), or treat revenue as PAYE income and pay tax and National Insurance accordingly (inside IR35). If they chose the former, and were deemed by HMRC to be doing so contrary to IR35 legislation, it was the contractor that HMRC pursues for unpaid back tax and National Insurance. However, from April 06th 2021, medium and large private sector clients (HMRC definition here: https://www.gov.uk/guidance/april-2020-changes-to-off-payroll-working-for-clients#conditions ) became responsible for determining the IR35 status of engagements of contractors. They have a legal obligation to take reasonable care in doing so. If they are proven by HMRC to have failed in that obligation, they will be liable for back tax, National Insurance and possibly penalties. Public sector clients became liable for IR35 status determination in 2017. HMRC’s main agenda was and is to stop large corporates from engaging contractors for roles that would traditionally be permanent employee positions, to avoid employer national insurance and other fiscal responsibilities and disadvantages associated with hiring employees.