Being supervised = inside?

[zathras]

Apparently the agent's business terms are governed by The Recruitment & Employment Confederation and cannot be changed. There is no substitution clause and apparently extra clauses cannot be added due to REC guidelines.

Then he will have no problem using the PCG/Rec contract then

[Qdos Contractor]

As stated above, the reference to 'direction' isn't good and will cause problems. Sounds like a standard contract I've reviewed thousands of times. Check one of the termination clauses (probably 11.2.1), which essentially states that you have to abide by the rules and regs applicable to the client's permanent staff (no limitation to confidentiality, H&S etc).

These ones never have a subs clause either, although MOO is normally covered.

I advise you it checked out by someone. The changes are usually quite simple.

[Jog On]

Thanks for all the replies folks – I have an update!

After much discussion and negotiation we have come to an agreement and I am getting the ‘outside IR35’ contract as opposed to the ‘inside IR35’ one. The agent is not happy about it because in his opinion he feels that the assignment is inside due to the amount of direction from the client – it is a support/XP/AD rollout roll. He has asked me to formally indemnify his company against any tax liabilities that could be incurred from an HMRC investigation which I am happy to do. I’ve worked with him before and we’re practically mates now.

So I am now awaiting for a PCG approved outside contract which will be consistent with the agent/client contract as well.

So I think with an outside contract, PCG cover and the fact that I am working for other clients outside of the contract (doing a few websites for people) and investing in business growth training as well as developing digital products to sell online I think I *should* be able to sleep soundly at night.

What a *%^*ing kerfuffle this IR35 nonsense is

[abirato]

Think and be informed

The agent is talking out of his nether regions :

1 While Agencies Regulations legislation is unclear on when an introduction has taken place, the received wisdom is that the point of introduction is when you have a meeting with the client to discuss if you can work together. If you have already had a meeting with the client then you are already Opted-in and the Agent is breaching the regulations by suggesting that you have to opt-out. You cannot opt-out after introduction. A gentle word suggesting that you may seek clarification from the DTI on this may get a more informed response.

2 Take control of your business. Become better informed. Suggestion - become a member of the PCG it is a great resource. Many of the members are very well-informed and will give qualified (they are not lawyers) but well-informed comment.

3 If the Agent uses the REC model contract (unusual to use it completely unmodified but possible) that is a policy choice. Equally, when a contractor raises queries and requests changes to to a contract if the Agent will not change it it is a policy choice, not a requirement of membership of REC. Many Agency contracts are modfied forms of the REC model contract.

4 It is human nature to take the easiest route to a conclusion. Asking for changes makes more work. Some agents listen and respond, others do not. My company has a policy of working with those who listen and respond. The more contractors that think and question instead of blindly accepting and signing what is offered by Agents the sooner we will have a more equitable working arrangements with agents and the more likely rates, Terms and Conditions will be to every body's benefit.

5 Most Agency contracts are written to minimise the risk to the Agent and pass on as much risk as possible to the contractor. To justify this comment I would suggest that every one of you out there looks at contracts that you have signed previously and ask yourself if you have signed up to acceptance of UNLIMITED LIABILITY in the event of anything going wrong. I would suggest that the majority of agencies have contracts written in such a way that unlimited liability is the default condition on most if not all agency contracts. If that is the case then I would suggest that your professional indemnity insurance (if you even carry it) will not cover you in those circumstances.

6 Do not assume that the agent is always right. Do not assume that Agents including their so called "legal departments" are well-informed in employment law, Intermediaries legislation (IR35), Settlements Legislation (S660 - the recent Arctic Case) - they tend to look after their own interests first not that of the contractor. I invariably find that those you speak to at the agency are less well-informed in the things that matter than I am. So many times I have been given the response "Well this has never been questioned before" (in most cases unlikely) but my response is always that just because it has not been questioned before does not make it right it just underlines how ill-informed and gullible many contractors are (or choose to be).

[Qdos Contractor]

When you get it, check the standard alternative contract for a MOO clause (or end date). Quite often it's lacking, although substutution and control are always good.

[TheFaQQer]

Thanks for all the replies folks – I have an update!

After much discussion and negotiation we have come to an agreement and I am getting the ‘outside IR35’ contract as opposed to the ‘inside IR35’ one. The agent is not happy about it because in his opinion he feels that the assignment is inside due to the amount of direction from the client – it is a support/XP/AD rollout roll. He has asked me to formally indemnify his company against any tax liabilities that could be incurred from an HMRC investigation which I am happy to do. I’ve worked with him before and we’re practically mates now.

So I am now awaiting for a PCG approved outside contract which will be consistent with the agent/client contract as well.

So I think with an outside contract, PCG cover and the fact that I am working for other clients outside of the contract (doing a few websites for people) and investing in business growth training as well as developing digital products to sell online I think I *should* be able to sleep soundly at night.

What a *%^*ing kerfuffle this IR35 nonsense is

It's got **** all to do with him about whether you pay IR35 or not. Just because he says it's caught, doesn't mean it is (and even if it is, you could choose to chance it and not pay it anyway).

An indemnity is worthless anyway, since HMRC will go after you personally rather than a company.

He sounds a bit numb to me.

[Epiphone]

(doing a few websites for people)

Are you any good and what do you charge?

[TheFaQQer]

Are you any good and what do you charge?

Bob Shawaddiwadi can do good websites with plenty cheapness.

[Jog On]

Are you any good and what do you charge?

My sites are doing pretty well, I’m only going into doing them for other people now. I don’t design or code (I outsource/sub that bit out as and when needed), I do SEO, marketing and Google Adword campaign management. I specialise things like keyword research, writing content that converts and getting traffic.