Does this clause mean I am inside IR35?

[akiras]

Hi,
Please help me in figuring out my IR35 status based on below.I don't have a substitution clause in my contract but have something called 'sub-contracting'.

7. Sub-Contractors

7.1 Sub-contracting is not permissible under the terms and conditions of this contract.


30. Transfer and Assignment

30.1 The Consultant shall not assign sub-contract or in any other way dispose of the Contract or any part of it without the NHS Trust having given prior written approval.

30.2 The Consultant shall be responsible for the acts and omissions of his
sub-contractors as though they were his own.


Regards,
Akiras

[NotAllThere]

I believe these two word "NHS Trust" probably mean your inside IR35.

The reason why there's a clause about bringing in subcontractors only with permission and another say no subcontracting is probably due to some lazy contract writer stitching different contracts together.

I would have thought that strictly, not being able to subcontract means not able to bring in another company to do your work for you. If you're not mentioned as the body being supplied by your company, there's no contractual reason why you can't bring in someone else who is also an employee of your company.

[eek]

Hi,
Please help me in figuring out my IR35 status based on below.I don't have a substitution clause in my contract but have something called 'sub-contracting'.

7. Sub-Contractors

7.1 Sub-contracting is not permissible under the terms and conditions of this contract.


30. Transfer and Assignment

30.1 The Consultant shall not assign sub-contract or in any other way dispose of the Contract or any part of it without the NHS Trust having given prior written approval.

30.2 The Consultant shall be responsible for the acts and omissions of his
sub-contractors as though they were his own.


Regards,
Akiras

That is only 1 clause amongst many that will have an impact and its worth emphasising that how you work will have as significant an impact.

You need to have your contract reviewed by a specialist. So speak to either QDOS (IR35 review) or Bauer & Cottrell - Expert IR35, Section 660 and Employment Status Advice (full contract review including IR35 bits). Public sector NHS so striked that bit out. You need to ask your agency for a determination of status as to whether you are inside or outside - from April 6th the end client is responsible for determining your status not you as a contractor / locum

[malvolio]

Also, although probably not that relevant here, sub-contracting is not substitution...

That contract is a mess though: you can't have contradictory clauses in the same agreement.

[northernladuk]

So.. What happens if they determine you are outside and then give you a contract that wouldn't pass and IR35 check in a month of Sundays?

[eek]

So.. What happens if they determine you are outside and then give you a contract that wouldn't pass and IR35 check in a month of Sundays?

We get a very interesting tribunal followed by a court case with the end client and agency fighting over who I responsible for the bill.

My concern with the above scenario is that that contract is so badly written that I suspect the agency is small and wouldn't be around when the battle finally finished which could lead you with a bill when HMRC comes calling (agency arguments not withstanding)..

One thing I do think is worth emphasising at the moment is that if you have a public sector outside IR35 you really need a big agency with a suitable contract who cannot easily disappear. One reason for using S3 is that we know they know what they are doing. Hays and the others don't seem as on the ball..

[LondonManc]

Hi,
Please help me in figuring out my IR35 status based on below.I don't have a substitution clause in my contract but have something called 'sub-contracting'.

7. Sub-Contractors

7.1 Sub-contracting is not permissible under the terms and conditions of this contract.


30. Transfer and Assignment

30.1 The Consultant shall not assign sub-contract or in any other way dispose of the Contract or any part of it without the NHS Trust having given prior written approval.

30.2 The Consultant shall be responsible for the acts and omissions of his
sub-contractors as though they were his own.


Regards,
Akiras

If you are happy to take the role knowing it will most likely be inside, insist on weekly payment terms.

[RonBW]

So.. What happens if they determine you are outside and then give you a contract that wouldn't pass and IR35 check in a month of Sundays?

Then the working practices clearly cannot match the contract.

And even if they do, the client has made the determination through negligence / dishonesty and therefore the liability lies with them.

[akiras]

Thanks to all for the reply . It was a poor writing indeed to have contradictory clauses in. I will have a review setup to see what the client says and determine the best possible approach.

[WordIsBond]

That contract is a mess though: you can't have contradictory clauses in the same agreement.

You missed the key words others have noted. NHS Trust. You can have all kinds of rubbish in the agreement.