Heads we win, tails you lose
Taking at the HMRC argument at face value, it would be practically impossible for a contractor not to be classified as a "disguised employee", e.g. with respect to "control":
- the requirement to work a professional day (most offices open and close at standard hours)
- Nationwide’s right to require Mr Lee to work in locations other than Nationwide’s Swindon sites (a contractor or consultant has to work where the work has to be done)
- the obligation to comply with statutory or other reasonable obligations (every consultant or contractor has to)
- the obligation to inform Nationwide if the consultancy services cannot be performed (every consultant or contractor has to)
- the obligation to provide a breakdown of services provided as verified by a representative of Nationwide (that's a standard part of every contract for services)
- the right for Nationwide to terminate if Mr Lee fails to perform the services promptly, efficiently and with all skill and in a professional manner (a standard cause for termination of a commercial contract)
Furthermore HMRC argued (contrary to precedent) that the right to substitute must be "practicable" as well as contractual, so as a need for individual specialist expertise or clearances (the very things required of contractors) automatically presume disguised employment.
Admittedly there were a few other aspects of the contracts in this case that tended to suggest disguised employment, but for HMRC to rely on those I have listed above and succeed effectively means that no contractor can escape the net unless they refuse to cooperate with their client and fail to fulfil their statutory obligations. This shows just how devious and dirty the whole of IR35 really is - the criteria are fundamentally biased to result in an outcome of "within".