Novak Brajkovic, IT contractor at Avecia

Has a substitute ever actually worked in your place on this engagement?

No substitution has happened on this engagement

No substitution occurred. Clause 8 of the Lower Contract provided that the personnel in the schedule "shall be the only persons whose services may be supplied" without Lorien’s written agreement, and paragraph 34 concludes the notional contract "would not have permitted substitution".

If you needed to send a substitute, could the client reject them?

Yes — the client could reject a substitute, or has an approval veto

Paragraph 32: both Avecia witnesses "were clear in their evidence that Avecia expected Mr Brajkovic to perform the work personally", and a substitute "could not have gained access to the department because of security issues, and would not have been allowed to work on the project software because his/her technical competence had not been established".

Can the client move you to different tasks or work areas on this engagement?

Yes, with my agreement

Contested on the evidence. Avecia’s written answers at paragraph 26 said he "would work on projects as and when allocated to him, which were appropriate to his skills". Mr Brajkovic at paragraph 27(1) said he was engaged on specified projects and "was not obliged to comply with any requests to assist outside those projects", though he would accommodate reasonable requests out of courtesy. Encoded as movement by agreement, which is the reading that fits both accounts.

Who decides how you do your work — the methods and approach you use?

I agree how to do it with others (client team, colleagues)

Paragraph 75(1): the notional contract would have required work "in accordance with standards and protocols necessary to make the project work-product fit for purpose and maintainable in the future by other IT experts", but "would not have been prescriptive as to ... the exact manner in which Mr Brajkovic implemented the skilled tasks assigned to him". HMRC noted at paragraph 28(3) that work was checked and reviewed by colleagues in the team. Encoded as agreeing the approach with others rather than deciding it alone.

Who controls when you work — the days and hours?

I agree my schedule with the client

Contested. Avecia’s answers at paragraph 26 described mandatory core hours of 10.00 to 16.00 with permission needed to vary. Mr Brajkovic at paragraph 27(2) described arriving by 8am and leaving by 4pm, taking 8 to 12 weeks holiday a year against employees’ set hours. Paragraph 75(1) resolves it: the notional contract required him "to commit sufficient time to that work in order for deadlines and budgets to be met" and to ensure absences "fitted with the staffing of the projects overall", but "would not have been prescriptive as to exact hours of attendance".

Who decides where you carry out the work?

I cannot choose — I must work at the client's location

Paragraph 27(4): all work on the Avecia projects was done at Avecia’s premises "because of security issues and to facilitate access to IT infrastructure, servers and corporate databases", with access governed by Avecia’s building hours. Paragraph 75(5) implies a term giving him building access to the extent necessary.

Did you purchase and supply significant raw materials for this work?

No

Did you provide significant specialist equipment of your own for this work?

No

Paragraph 75(5): the notional contract "would not have required Mr Brajkovic to provide any IT equipment or software of his own – and indeed may have required him to use only that provided by Avecia, because of security concerns". Paragraph 46 records Avecia also providing office accommodation, canteen facilities and car parking.

Did you use your own vehicle as a primary work tool on this engagement?

No

Did you incur significant other work-related expenses at your own risk?

Yes

Paragraph 42: Novasoft "incurred costs of training, printing of materials and stationery, hardware upgrades, library of IT manuals" and was required to carry professional indemnity insurance, and paragraph 45 records Novasoft providing Mr Brajkovic with IT equipment for use outside Avecia. HMRC challenged the training costs specifically at paragraph 43, where Mr Brajkovic accepted much IT training was free but still cost him time away from paid assignments. The tribunal did not reject the remaining categories.

Are significant work expenses simply not applicable to this type of role?

No — expenses could be relevant but I didn't have them

How are you mainly paid for this work?

Per time period — a weekly or monthly rate

Paragraph 75(6): the notional contract "would have provided for an hourly rate of compensation, and would have required proper invoices to be delivered periodically". Clauses 15 and 17 of the Lower Contract provided for payment four-weekly against invoices supported by client-authorised timesheets.

If you delivered substandard work, what would happen?

Fixing it would be covered within my normal rate

Paragraph 41, and a genuine contrast with MBF Design Services. The evidence of both Avecia witnesses was that "if some of Mr Brajkovic’s work had been unsatisfactory then the time spent by Mr Brajkovic in correcting that work would have been remunerated, so that Novasoft would have received fees for that extra work". Mr Brajkovic said he would have felt professionally obliged to remedy it without billing, but no such occasion arose. Encoded on the contractual position the tribunal recorded rather than on what he said he would have chosen to do.

Do you receive employee-type benefits from the client?

No

Paragraph 75(7): the notional contract "would not have provided for any typical employee benefits or statutory protections". Paragraph 61 lists the exclusions accepted by the tribunal at paragraph 63, including no induction, no staff away-days, no staff training programme, a contractor’s security pass of different design, no staff car park and exclusion from Avecia’s personal accident insurance.

Do you manage any of the client's employees — acting as their line manager?

No

No finding that he managed anyone. Paragraph 62 records the reporting line running the other way, with Mr Brajkovic reporting to Mr Black informally each day and more formally each week.

Do you have direct contact with the client's customers or end clients?

No

No finding of contact with Avecia’s customers. The work was internal IT project delivery, principally a chemical compounds and formulations application called HENRE6, described at paragraph 12.

Is the client obliged to offer you work, and are you obliged to accept it, throughout this engagement?

No — either party can stop without obligationCEST does not assess this

Paragraph 35: HMRC accepted "there was no obligation on Lorien to offer further work on expiry of the contract – nor on Novasoft to accept it". Paragraph 37: on an unexpected incident such as a total power outage he "would have been expected not to include the down-time on his worksheets – so Novasoft would not have received any fees for that down-time". Paragraph 36 records the contract being terminated a fortnight early with no rights in respect of the balance.

When this contract ends, would you be surprised if the client did not offer you more work or extend?

No — each engagement is discrete and self-containedCEST does not assess this

Finely balanced. The engagement ran from July 1998 to December 2002, and paragraph 62 records HMRC describing him as part of the Avecia IT project team structure "for over four years", which points towards an expectation of continuation. Encoded false on paragraph 36, where there was "no right or expectation to be offered any contracts on future phases of the projects", the contract was ended early, and Novasoft then went three months without another assignment. Verdict-only field.

Are you working for multiple clients simultaneously, or have you actively marketed your services to others in the past 12 months?

Yes — I have or actively seek multiple clientsCEST does not assess this

Paragraph 64: he "did undertake another paid assignment at his time, being setting up a website for a music band", and was free to work for others subject to confidentiality and Lorien’s agreement. Paragraph 66 concludes the notional contract "would not have prohibited him from other assignments that did not conflict with Avecia’s business interests". Encoded true, though the only other paid work evidenced was small, and clause 20 of the actual Lower Contract did restrict similar work without written consent. Verdict-only field.

Do you hold professional indemnity or public liability insurance in your own name or through your company?

Yes — I maintain my own professional insuranceCEST does not assess this

Paragraph 42: "Novasoft was required to carry professional indemnity insurance." This comes from Mr Brajkovic’s submission on financial risk, and HMRC’s reply at paragraph 43 challenged only the training costs, not the insurance. Encoded true on that basis, and it is the one case in this study where business insurance is established rather than absent. Verdict-only field.