Large agency IR35 contract failure

[hgllgh]

A large agency have got back to me saying that their legal team will not ammend the contract as advised by QDOS (too much substitution control for client/agency).
They also said that if a contract is not signed they will need to remove me from the project.
They did however say that they have thousands of contractors on this same contract and that it has also been verified by HMRC.

What can I do in this situation where they will not change the contract?

Also, out of interest do they have the right to remove me from a project that the end client would want me to stay, purely on the basis of my not signing the contract?

Is there anything I can do if the Agency says they won't change the contract?

[Clare@InTouch]

I've never heard of HMRC stating a contract is absolutely outside IR35 - for a start IR35 is based on working conditions not the written document, so they wouldn't have enough detail to base an opinion on. They also wouldn't want to destroy any possible legal action they may later pursue by issuing such a blanket opinion, that would be like sending out a press release saying all 15,000 people who work through (insert agency name here) are outside IR35, even if they blatently act and are treated as employees. It would ruin the legislation in one fell swoop.

If the agency refuse to budge, which isn't uncommon, get a confirmation of agreement letter in place direct with the client. Set out the working conditions as you understand them and ask the client to sign to confirm. This is of course assuming that your working practices are enough to put you outside of IR35!

[hgllgh]

Thanks Clare,

I don't think they said that HMRC deemed the contracts were outside IR35, more along the lines that they had some kind of review/approval with HMRC, but thats all a bit vague really isn't it.

Effectivley the agency want to stop freelancers having the freedon to sub contract but in reality most contractor won't do that and I think the agency should take that small risk on themselves rather than put their contractors at risk with questionable RoS clauses in their contracts

[Clare@InTouch]

A lot of agents will tell you the contract is IR35 friendly, but in reality it's almost impossible for them to be so sure unless they have done a full review of your working conditions too.

Don't worry too much if they refuse, it's what the end client thinks that matters really. If they are happy for you to substitute, just get it in writing direct from them instead.

Are you happy that the reality reflects you being outside, and it's just the agency contract that's not backing you up?

[hgllgh]

Are you happy that the reality reflects you being outside, and it's just the agency contract that's not backing you up?

Yes, my working practices are outside as far as I can see so it is just the agency contract that is weak on RoS...

[Clare@InTouch]

Yes, my working practices are outside as far as I can see so it is just the agency contract that is weak on RoS...

Good, so get all the alternative evidence you can - a letter of agreement direct with the client that sets out RoS and control, and maybe keep a diary of any times you've made decisions/left early/worked from home in order to back up the control aspect (if applicable).

Make sure you don't get caught out by the little things - get a name badge with your company on, if you're on the internal email/'phone system make sure it's under your limited name not your own name, don't attend staff meetings if they are not relevant, don't attend staff parties, get yourself your own company website and company stationery etc. Basically, act like a contractor. All the little things will then support your status, and the fact that the agency contract is not supportive can be argued against.

Unfortunately you'll never know for sure unless you end up in court, so try to ensure the balance of probability sways in your favour.

[Olly]

get a name badge with your company on, if you're on the internal email/'phone system make sure it's under your limited name not your own name

When have you ever seen that happen at a big corp?
In 12 years I've probably worked at 15 corporations and have never seen a one man band manage to pull off a trick like that.

[BolshieBastard]

When have you ever seen that happen at a big corp?
In 12 years I've probably worked at 15 corporations and have never seen a one man band manage to pull off a trick like that.

Totally agree.

[Clare@InTouch]

When have you ever seen that happen at a big corp?
In 12 years I've probably worked at 15 corporations and have never seen a one man band manage to pull off a trick like that.

They are merely suggestions based on comments from case reviews. Whether or not you can do them is down to individual circumstances.

[Stag Cozier]

Don't all contractors wear identity cards around the neck??....must be just me then!