NDA and IR35

[slice16]

Morning All,

I have a strange question regarding IR35. I am passing it over to QDOS, but as there is a 5 day turnaround, I wondered if anyone on here knows the answer.

Basically, I am being offered a contract between an my LTD company and an IT Supplier. They have a contract with a global consultancy. Alongside my contract, I have been asked to sign two NDAs, one for my customer, and the other for the consultancy.

The large consultancy NDA specifies:

'I <myname> and employee of <Large Consultancy>...'

I am not happy to sign this as it is saying employee, which I am not. After asking for it to be amended, I was told it was just standard and cannot be changed due to the size of the company.

To what extent is an NDA used in an IR35 investigation? If the contract passes a review (currently with QDOS), and working practices are legit... would the NDA be the nail in the coffin?

[cojak]

I can't answer the rest of it, but the guff about the contract cannot be amended? Don't believe a word of it.

But you do need to be aware of your own BATNA (best alternative to a negotiated agreement) - what will you do if QDOS says that it's a rubbish contract? Get QDOS to negotiate with them? Walk away from the contract?

Ultimately this decision is yours.

[cojak]

Oh, and if you haven't already, you need to send the NDA to QDOS as well, as far as I would be concerned that's all part of the contract review.

[ruasonid]

I recently signed an NDA with a supplier (as intermediary) in the name of my own Ltd. They warranted to the end user/client that I was covered by an NDA. Contract was never actually signed (but NDA is in place for future opportunities). Suggest you insist on using your Ltd.'s name. Its usually some clueless HR person that makes these things appear as obstacles when they are not.

[DotasScandal]

"I was told it was just standard and cannot be changed due to the size of the company"

Total BS, as per Cojak's comment.
Everything can be changed, and everything can be negociated. Very often a little push back is all that is needed.

[The Spartan]

There's not a contract I've been presented with that I haven't got amended, when faced between amending a contract and losing a viable source of income agencies will more than likely choose the former.

You just need to be resolute and be able to back up your position.

[WordIsBond]

Ask them, if they won't amend, how much extra they are willing to pay you to compensate for the increased IR35 risk.

[b0redom]

Ask them, if they won't amend, how much extra they are willing to pay you to compensate for the increased IR35 risk.

Never mind that. If the contract says you're an employee, ask about sick pay, what the holiday allowance is, details of their pension plan etc etc etc.

[WordIsBond]

Never mind that. If the contract says you're an employee, ask about sick pay, what the holiday allowance is, details of their pension plan etc etc etc.

You win.

[SueEllen]

You can't sign the NDA as you aren't an employee of the consultancy and they could sue you for saying so if they decide you are damaging their business or reputation.

You can also sign an NDA in your own name but the wording needs to be correct. However it's stupid for the company or agency to request only you personally are covered as if you use a substitute or another employee of your company then they aren't automatically covered by the NDA. The NDA should cover your company, its officers and employees plus subcontractors to be worthwhile.