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  1. #1

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    Default IR35 friendly retainer agreements and other worries!

    I accidentally fell into contracting just over a year ago. I have 40 hours a week from a main client (through an agent), but have just been approached direct by a new client who'd like to retain me for a few hours each week to support their marketing.

    The new client wants to decide as they go how to use those retained hours eg: one week they might want me to write a set of marketing emails for them, the next week they might want me to design a marketing campaign.

    Worry 1: if the client can decide what I do week-to-week. Does that = "control"? I'll be deciding when and where I work, though they are likely to give me deadlines for each piece of work.

    Worry 2: I have a Master Services Agreement which is IR35 friendly, but I have no idea how to word the schedule / retainer agreement. I've read through previous retainer discussions on here, but I'm still not clear...

    Worry 3: They want to offer my services to their customers, as it might help them attract more business. They want to put me on their "Our team" page of their website and give me a company email. My IR35 googling has made me wonder if this might make me look like "part and parcel" of the client's business... Their staff all work from one office, and I be working from home 150 miles away, if that helps.

    This won't be my main work, so if it helps with IR35-proofing the contract/schedule, I don't mind if they don't pay me every week - I'm happy to only charge them when I actually do work. I'm also happy to give them instant cancellation of contract.

    Does anyone have any thoughts or suggestions? Thanks

  2. #2

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    Quote Originally Posted by SaraDigital View Post
    I accidentally fell into contracting just over a year ago. I have 40 hours a week from a main client (through an agent), but have just been approached direct by a new client who'd like to retain me for a few hours each week to support their marketing.

    The new client wants to decide as they go how to use those retained hours eg: one week they might want me to write a set of marketing emails for them, the next week they might want me to design a marketing campaign.

    Worry 1: if the client can decide what I do week-to-week. Does that = "control"? I'll be deciding when and where I work, though they are likely to give me deadlines for each piece of work.

    Worry 2: I have a Master Services Agreement which is IR35 friendly, but I have no idea how to word the schedule / retainer agreement. I've read through previous retainer discussions on here, but I'm still not clear...

    Worry 3: They want to offer my services to their customers, as it might help them attract more business. They want to put me on their "Our team" page of their website and give me a company email. My IR35 googling has made me wonder if this might make me look like "part and parcel" of the client's business... Their staff all work from one office, and I be working from home 150 miles away, if that helps.

    This won't be my main work, so if it helps with IR35-proofing the contract/schedule, I don't mind if they don't pay me every week - I'm happy to only charge them when I actually do work. I'm also happy to give them instant cancellation of contract.

    Does anyone have any thoughts or suggestions? Thanks

    If your retainer contract is less than your annual salary + pension, it's probably a moot point - you could account for at as inside and be done.

  3. #3

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    Quote Originally Posted by mudskipper View Post
    If your retainer contract is less than your annual salary + pension, it's probably a moot point - you could account for at as inside and be done.
    Good point. Although you wouldn't want concerns over billing too much to become Worry #4.

    I would say the key is that the work needs to be 'offered' and 'accepted', and how this is evidenced in case of later investigations.

    If they expect you to pick up anything that is sent to you then how is this different to a zero-hour contract?

    I've not done retainer work myself yet, although it has been on the cards.

  4. #4

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    Quote Originally Posted by mudskipper View Post
    If your retainer contract is less than your annual salary + pension, it's probably a moot point - you could account for at as inside and be done.
    That's how I account for my IR35-caught work - it's less than my salary and pension.
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    Quote Originally Posted by mudskipper View Post
    If your retainer contract is less than your annual salary + pension, it's probably a moot point - you could account for at as inside and be done.
    That's exactly what I've done.

    I have multiple clients at once, and one is a retainer with my former employer. It's very similar to what OP describes. I could probably try to find a way to restructure it and try somehow to drag it outside IR35, but why?

    I actually do better on it, so far, than on my other contracts, because they don't usually use all the time for which they retained me, and because I'm charging a premium for providing long term part time availability. I haven't figured it out, but I think I'd still do better on it if I were paying tax like a permie on it. But for now, salary + pension absorbs it, so the IR35 status costs me nothing except a little more accounting hassle.

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    Quote Originally Posted by mudskipper View Post
    If your retainer contract is less than your annual salary + pension, it's probably a moot point - you could account for at as inside and be done.
    Thanks, I didn't know about this. I'm hoping the contract will end up being worth more than that, but I'll sit down and do my sums.


    I would say the key is that the work needs to be 'offered' and 'accepted', and how this is evidenced in case of later investigations.
    Yes, that makes sense. So I think I'm going to have my Master Services Agreement and a schedule for this project (we're going for 4 months initially). In the schedule I'm thinking of setting out fixed (preferential) prices for certain pieces of work that are likely to reoccur, then givie my hourly rate for anything else.

    In terms of offered and accepted, I think they'll probably send me a list of what they want each week via email (eg: we need you to write a blog post about widgets and do some SEO work on our product pages), and I will send a proposal via email for them to accept or reject. Would that suffice?

    I've been reading about IR35 and control (when, where, how, what). I think I'm ok on the where and how, but the client will be telling me what work to do (at a high level) and moving me between tasks, and telling me when the work needs to be done (they'll give me deadlines).

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    Quote Originally Posted by SaraDigital View Post
    Yes, that makes sense. So I think I'm going to have my Master Services Agreement and a schedule for this project (we're going for 4 months initially). In the schedule I'm thinking of setting out fixed (preferential) prices for certain pieces of work that are likely to reoccur, then givie my hourly rate for anything else.

    In terms of offered and accepted, I think they'll probably send me a list of what they want each week via email (eg: we need you to write a blog post about widgets and do some SEO work on our product pages), and I will send a proposal via email for them to accept or reject. Would that suffice?

    I've been reading about IR35 and control (when, where, how, what). I think I'm ok on the where and how, but the client will be telling me what work to do (at a high level) and moving me between tasks, and telling me when the work needs to be done (they'll give me deadlines).
    IIRC, thecyclingprogrammer had an IR35 friendly retainer contract written some time ago, which might be worth seeing if he would share.
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    I have done retainer work using a modified version of the IPSE standard MSA and schedule and had some concerns at the time which I discussed on here however I ended up going ahead with the retainer agreement, which did pass a contract review with QDOS.

    However, probably the most important thing about my agreement was that the scope was agreed up front and quite restricted. The work was strictly confined to the project I had already been working on up to that point under a previous contract and was effectively an ongoing support contract. I agreed to make myself available for 4 days a month for a fixed monthly cost. We had some agreement on allowing some days to be rolled back or forwards depending on my availability to give a bit of flexibility but other than it was effectively a use it or lose it type deal. Termination rights were weighted in favour of the client - they could terminate at any time with it becoming effective at the end of the current month (so no refund on any fees paid for that month) with MyCo having to give one month notice. All other provisions were similar to what was in my usual schedule and the work was covered by the MSA too.

    One the face of what you've said I'd be very concerned about D&C and a retainer style agreement could make MOO harder to argue in-so-far that within the retainer period, you can't really reject any work offered, though nobody seems to agree with MOO is about offer and acceptance of work within a contract or on a contract to contract basis. If you can get a water-tight RoS this could keep you outside IR35 but failing that as others have said, if the money is good, just operate it in IR35 if you're concerned.

  9. #9

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    Quote Originally Posted by TheCyclingProgrammer View Post
    On the face of what you've said I'd be very concerned about D&C and a retainer style agreement could make MOO harder to argue.
    Thank you. I agree. I think the combo of a retainer and the level of Control could be a problem.

    I'll either stick inside IR35 as suggested (I've done the maths and it's actually not too bad), or just scrap the retainer idea altogether (if the Client doesn't mind...). I'm using the IPSE Master Services Agreement and Schedule, so I could list the services as Digital Marketing (too broad?), to support a 4 month project to generate leads.

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