IR35 Contract Review Strangeness.

[TheLordDave]

As part of my new contract (public sector) I have to 'prove' my IR35 status. In the guidance it is suggested that a QDOS contract review would be sufficient evidence of being outside IR35.

So, I sent my contract off to QDOS who failed it based on some substitution clauses. Another contractor on the team with the exact same contract, same agency ect, sent his off prior to me. QDOS have passed his contract.

As much as the whole IR35 thing is an utter farce, I see recommendations to have a contract review repeatedly, yet if the same contract can be judged both a pass and fail I am slightly dubious that it makes any difference what so ever.

Of course the agency wont change the contract.

[TheCyclingProgrammer]

You can be outside IR35 without having any RoS clause so I don't see why a poor/fettered clause should be an automatic fail. RoS clauses are overrated as an IR35 defence IMO - a good unfettered clause can certainly be used as a solid defence unless it can be proved to be a sham clause but I imagine that many contractors have RoS clauses that are ineffective.

Can you show insufficient lack of MOO or D&C? To me this is more indicative of whether you are inside or IR35 or not but you only need one of these defences. A working practices assessment should certainly help with the latter; was there anything else in the contract that QDOS deemed as a negative?

[SteelyDan]

[QUOTE=TheLordDave;2003791]Another contractor on the team with the exact same contract, same agency ect, sent his off prior to me. QDOS have passed his contract.QUOTE]

So, did you take this up with QDOS?

[jamesbrown]

You can be outside IR35 without having any RoS clause so I don't see why a poor/fettered clause should be an automatic fail. RoS clauses are overrated as an IR35 defence IMO - a good unfettered clause can certainly be used as a solid defence unless it can be proved to be a sham clause but I imagine that many contractors have RoS clauses that are ineffective.

Can you show insufficient lack of MOO or D&C? To me this is more indicative of whether you are inside or IR35 or not but you only need one of these defences. A working practices assessment should certainly help with the latter; was there anything else in the contract that QDOS deemed as a negative?

I completely agree with this. As we don't know the details, it's difficult to comment on the reviewer's thoughts. However, I suspect that a contract-only review, without a thorough review of your working practices, is more liable to being failed on the absence of an unfettered RoS, depending on the risk-tolerance of the reviewer. You really need to have a thorough review of your situation rather than one of these quick, contract-only, reviews (which I personally feel are very limited). Indeed, depending on the precise nature of the work you do, the core elements may be assigned different weightings. If the complete review indicates, for example, that you are extremely strong in terms of lack of D&C and other elements, then the absence of an unfettered RoS should not prevent a strong pass, although it would be a negative in general.

[tractor]

As part of my new contract (public sector) I have to 'prove' my IR35 status. In the guidance it is suggested that a QDOS contract review would be sufficient evidence of being outside IR35.

So, I sent my contract off to QDOS who failed it based on some substitution clauses. Another contractor on the team with the exact same contract, same agency ect, sent his off prior to me. QDOS have passed his contract.

As much as the whole IR35 thing is an utter farce, I see recommendations to have a contract review repeatedly, yet if the same contract can be judged both a pass and fail I am slightly dubious that it makes any difference what so ever.

Of course the agency wont change the contract.

Have you compared the two contracts side by side? If so and they are identical, you need to ask this question of QDOS. If you haven't it is likely that there are some material differences. Whichever way it is, you cannot ask the question until you have compared the two.

[TheLordDave]

Sorry for the lack of detail have had a beverage or two. Side by side comparison, same contract to the letter. Neither has had a working practises review. I will drop qdos a email though just to hear their thoughts on it.

It's the first time I have had a contract ir35 reviewed so presumed it would fly through given the other contractors ones had.

Not slating qdos as the points they raised are perfectly valid, just wondered why it wasn't noticed on the other review.

[jamesbrown]

Sorry for the lack of detail have had a beverage or two. Side by side comparison, same contract to the letter. Neither has had a working practises review. I will drop qdos a email though just to hear their thoughts on it.

It's the first time I have had a contract ir35 reviewed so presumed it would fly through given the other contractors ones had.

Not slating qdos as the points they raised are perfectly valid, just wondered why it wasn't noticed on the other review.

It could be that one reviewer missed something. However, it's also possible that they came to a different subjective interpretation of the evidence. Afterall, there's a reasonable element of subjectivity associated with IR35, which is only exaggerated by looking at the contract alone. The difference between a borderline pass and a borderline fail may not be great, although one reviewer indicating a strong pass and another indicating a strong fail would raise questions.

[Kate at Qdos]

Contract Review Inconsistency

We always strive to be as consistent as possible when we look at contracts, however invariably there will be a slight difference in opinion between the consultants. If you would like to send your contract directly to me; Kate Hardy at [email protected] I would be more than happy to take a look at this for you.

[SteelyDan]

We always strive to be as consistent as possible when we look at contracts, however invariably there will be a slight difference in opinion between the consultants. If you would like to send your contract directly to me; Kate Hardy at [email protected] I would be more than happy to take a look at this for you.

I'll put money on this now getting thru IR35

[BolshieBastard]

I'll put money on this now getting thru IR35

Why? It could be that the other contract should have been a 'caught.'