New CL1 contract failed IR35 review on the following

[turbowoowoo]

22.8 Where the Individual is temporarily filling a post at Senior Civil Servant Pay Band 2/Director level (or equivalent) and above, the Company acknowledges and agrees, and shall ensure that the Individual acknowledges and agrees, that in line with the Government’s Transparency Agenda, the Contracting Body will publish:
22.8.1 the grade and post title which the Individual is temporarily filling;
22.8.2 the Individual’s name; and
22.8.3 the average salary applicable to a permanent appointment to the subject post (in £5,000 bands) together with any necessary explanatory notes.

How serious is this?

is this a show stopper?

[cojak]

It failed the review - how serious do you think it is??

If you intend working within IR35 for this contract it isn't a show-stopper at all.

It's your decision. Take it or leave it.

[turbowoowoo]

It failed the review - how serious do you think it is??

If you intend working within IR35 for this contract it isn't a show-stopper at all.

It's your decision. Take it or leave it.

Cojak, not really what I meant, my fault.

How serious is this clause? I will not be filling one of those positions, therefore does this null and void this clause?

Agree about the take it or leave it scenario and my insurance is still valid as long as the working practices agree.

[TykeMerc]

Cojak, not really what I meant, my fault.

How serious is this clause? I will not be filling one of those positions, therefore does this null and void this clause?

Agree about the take it or leave it scenario and my insurance is still valid as long as the working practices agree.

You've clearly commissioned the review that has given the FAILED response, have you discussed the response with the reviewer?
The person that did the review can interpret it far better than a bunch of folks on this forum who've only seen a tiny part of the results and would typically employ a professional reviewer like you have......

I'm inclined to think that unless you're filling a Director role as a Manpower Sub then the clause is immaterial, but the review professional will know for sure.

[northernladuk]

Question is are you actually filling a post at that position? I thought positions at that level in the public sector also fell foul of the controlling persons issues as well.

[turbowoowoo]

You've clearly commissioned the review that has given the FAILED response, have you discussed the response with the reviewer?
The person that did the review can interpret it far better than a bunch of folks on this forum who've only seen a tiny part of the results and would typically employ a professional reviewer like you have......

I'm inclined to think that unless you're filling a Director role as a Manpower Sub then the clause is immaterial, but the review professional will know for sure.

Agreed, and already under discussion. As I need to sign contract (or not) today I wondered if anyone had any experience on the board for such a clause.

Obviously my decision will be based on the response from the professional reviewer.

But agree with your last sentence, that's my understanding and just want confirmation really.

[centurian]

Depends on whether the (professional) reviewer took into account the fact that you were not filling one of those roles.

If it was their opinion that the contract still fails, regardless of whether you fill that role or not, then a fail is still a fail.

However, I wouldn't be surprised if they applied a cookie-cutter approach and didn't/don't consider the context of the role. Hard to say in that case.

[malvolio]

Depends on whether the (professional) reviewer took into account the fact that you were not filling one of those roles.

If it was their opinion that the contract still fails, regardless of whether you fill that role or not, then a fail is still a fail.

However, I wouldn't be surprised if they applied a cookie-cutter approach and didn't/don't consider the context of the role. Hard to say in that case.

Yep, have to agree with this view. If you aren't doing that kind of role, the clause shouldn't be in the contract but has no value or relevance anyway. But I query the competence of the reviewer for not making that explicit.

This goes back to the Lester case at the Student Loan company. Legally, if you hold a controlling position - which means something like the CEO where the role is an intrinsic part of the company regardless of who fills it - in an organisation but are not an employee of that organisation, you have to be paid as an employee. It's not actually anything to do with IR35

[BlasterBates]

From what I understand public sector contractors are a particular target of HMRC because of the "hoo-ha" personally if I were you I would accept and just stay in IR35. We did have someone on the forum asking advice, admittedly a social worker, who was recently targeted by HMRC for IR35.

[bracken]

22.8 Where the Individual is temporarily filling a post at Senior Civil Servant Pay Band 2/Director level (or equivalent) and above, the Company acknowledges and agrees, and shall ensure that the Individual acknowledges and agrees, that in line with the Government’s Transparency Agenda, the Contracting Body will publish:
22.8.1 the grade and post title which the Individual is temporarily filling;
22.8.2 the Individual’s name; and
22.8.3 the average salary applicable to a permanent appointment to the subject post (in £5,000 bands) together with any necessary explanatory notes.

How serious is this?

is this a show stopper?

A couple of points from me:

- My CL 1 contract date 24 July 2014 passed an IR35 review. Shows how subjective the review is when it can come back with a different review outcome (assuming it's the same contract)
- Although I guess the argument with this particular clause is one of being part and parcel, surely, you only have to demonstrate one of MOO, ROS, or D&C to be outside of IR35 anyway?

In my view, not a show stopper, particularly if it doesn't apply to you anyway.

B