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On the border
KEY POINTS
- A hypothetical contract can only be determined by establishing what the parties would have agreed.
- The approach of the tribunals is mixed but the main theme seems to be that the parties’ intentions are of little importance.
- IR35 requires an artificial exercise by the tribunal to determine the hypothetical contract between the worker and the client.
- The Ready Mixed Concrete case explains that the rights and duties of the parties and their intentions are relevant.
- The Supreme Court in Pimlico Plumbers confirmed that the overarching intention of the parties is material when determining employment status.
- If an arrangement is genuine a business should be able to choose between taking on employees or outsourcing.
On a true reading of ITEPA 2003 ch 8...
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