'IPSE Friendly' contract failed by QDOS

[TheFaQQer]

At the very least, I'd like something like "which shall not be reasonably withheld" at the end of 1.4 - they have to approve (which is their right) but can't just say "we don't like her" as a reason to reject the substitute.

But at a push, I'd accept those clauses.

[mudskipper]

OK... thanks guys for all your comments so far. So ....

What the contract says currently - agency say this is IPSE IR35 Friendly:

1.4 The Company shall make available and maintain continuity of service in respect of the Consultants who shall be responsible for the provision of the Services for the duration of the Contract Period. The Company shall not substitute any Consultant (unless he is unable to continue for reasons such as illness, holidays or termination of employment or engagement with the Company) except with Client's prior written consent.
1.5 If a Consultant is unable to provide the Services due to illness or injury, the Company shall advise Square One of that fact as soon as reasonably practicable, and where appropriate, but only with the consent of Client, arrange for the Services to be provided on a temporary basis by an alternative, but no less well qualified, Consultant


This is QDOS opinion

The Schedule – Clause 1.4 – The right to provide a substitute is one of the most important tests in determining IR35 status. It is therefore crucial there is a strong clause within your contract and that your right to provide a substitute is a genuine one, i.e., recognised by your end client. Not having a genuine right could significantly weaken the prospects of success in the event of an IR35 enquiry. This clause is quite restrictive and I would suggest removing this clause and replacing it with the following. ‘The Supplier shall provide the services using suitably qualified personnel of their own choosing. The Supplier reserves the right to substitute any personnel, provided the Client is reasonably satisfied that the substitute possesses the necessary skills and qualifications for the satisfactory completion of the services. The Supplier will remain liable for the services completed by substitute personnel and will bear any costs.’

And this is Agency reply:

Schedule, Clauses 1.4 and 1.5; Standard Terms of Business, clause 5.4: In relation to the remaining comments, regarding substitution: the right of substitution has to be balanced against the Client’s right to decide who will take part in the project and have access to their premises and/or systems – substitution which does not require Client’s prior consent would unreasonably restrict that right. The existing clause still provides wide scope for substitution, subject only to suitability of the candidate and Client’s approval.


If the current clauses 1.4 and 1.5 are IPSE 'approved' then I'm happy to stick with it. I can't see the current IPSE template as I'm not a member.

Pretty sure that's not the standard IPSE substitution clause - will see if I can check for you.

[TheFaQQer]

Pretty sure that's not the standard IPSE substitution clause - will see if I can check for you.

I agree - I'm certain it's not.

[normalbloke]

I agree - I'm certain it's not.

Thanks. Be great if someone with access to the IPSE template substitution clause could tell me what it DOES say so's I can get back to the agency.

[eek]

Thanks. Be great if someone with access to the IPSE template substitution clause could tell me what it DOES say so's I can get back to the agency.

The quickest way to get the clause would be to click here you can use code IPSEMGM0627 to get a £10 voucher for joining.

No one on here is going to provide you with the very well written clause for free but I can safely say that the IPSE version has more clauses, is far clearer , easier to read and doesn't waffle as much...

[mudskipper]

Thanks. Be great if someone with access to the IPSE template substitution clause could tell me what it DOES say so's I can get back to the agency.

As it's a member only resource, I don't think we can do that.

There are a number of templates on the site, so it's difficult to know which one your agency thinks it's using. But basically the ideal is an unfettered right of substitution.

[normalbloke]

The quickest way to get the clause would be to click here you can use code IPSEMGM0627 to get a £10 voucher for joining.

No one on here is going to provide you with the very well written clause for free but I can safely say that the IPSE version has more clauses, is far clearer , easier to read and doesn't waffle as much...

I've already paid QDOS thanks. All I was asking if the clause is the same as the IPSE one. If it isn't, then the agency is being a bit free with their 'We use IPSE IR35 friendly contracts' line, and IPSE might like to know about it. Or should I have joined before pointing it out?.

[eek]

I've already paid QDOS thanks. All I was asking if the clause is the same as the IPSE one. If it isn't, then the agency is being a bit free with their 'We use IPSE IR35 friendly contracts' line, and IPSE might like to know about it. Or should I have joined before pointing it out?.

So get QDOS to negotiate changes in the contract then.. Or walk away and find another contract with a different agency...

You are asking us to provide you for free with something that is restricted to paying members of IPSE. Three of us had already told you it doesn't seem to be the same as the current version. But I would love to know what right you think you have to access that information without paying for it....

Its also possible that the agency is right in saying that the contract is IPSE friendly. Once upon a time, it might have been.... or it may be based on a previous version.

[malvolio]

I've already paid QDOS thanks. All I was asking if the clause is the same as the IPSE one. If it isn't, then the agency is being a bit free with their 'We use IPSE IR35 friendly contracts' line, and IPSE might like to know about it. Or should I have joined before pointing it out?.

They've been told and are on the case.

It's not a secret society, you know; its members do actually pass on information in both directions. But, as has been said quite rightly, that does not extend to members-only material. And there's nothing to stop you phoning them up if you think they're being mis-represented

[normalbloke]

So get QDOS to negotiate changes in the contract then.. Or walk away and find another contract with a different agency...

You are asking us to provide you for free with something that is restricted to paying members of IPSE. Three of us had already told you it doesn't seem to be the same as the current version. But I would love to know what right you think you have to access that information without paying for it....

Its also possible that the agency is right in saying that the contract is IPSE friendly. Once upon a time, it might have been.... or it may be based on a previous version.

Jeez...what's up with you? I realise I'm not entitled to see the templates, but only asking for a yea or nay about one clause rather than a "doesn't seem to be" .

I am in touch with QDOS about it all.... this was just an aside as the agency started quoting IPSE at me.