Advice Please

[LATN]

Friends,

Appreciate your views.

How would you interpret the following clause.

The number of days in which the Services will not be performed by each Contractor
shall, unless otherwise agreed between the Client, the Company and the Contractor,
be not less than 25 days (excluding bank holidays) in any Assignment of a 12 month
period, such period of non-performance to be pro rated by reference to the duration
of the Assignment.


1) You need to perform a minimum of 25 day’s
service over the year or
2) you must not exceed 25 days a year
holiday.

[TheLordDave]

I read it as you must take 25 days 'off' from the contract in 12 months.

Bank perchance?

[LATN]

Thanks. Is this bad from an IR35 perspective?

[northernladuk]

I read it as you must take 25 days 'off' from the contract in 12 months.

Bank perchance?

That's how I read it. The number of days no work is done must not be less than 25 days.

So I'd say you have to have 25 or more days of not working.

Some further context would have been useful though.

[northernladuk]

Jeez, I've gone over it I've completely confused myself now.

[northernladuk]

Thanks. Is this bad from an IR35 perspective?

Could be. All depends on the contract. Smacks of D&C but again it's all about the context. Banks are known for having forced periods of the gig so if that's the case and it applies to contractors only then no.

At the very least ask the agent or client to clarify but better still get a specialist like QDOS to review it properly.

[LisaContractorUmbrella]

I think that this refers to holiday i.e. you will need to take not less than 25 days holiday in each year (pro-rated accordingly). Presumably this is to comply with the EC Working Time Directives but it would suggest that the company consider you to fall under the definition of 'employee' which would not be great from an IR35 point of view

[WordIsBond]

They've budgeted to pay for up to 235 days a year, but not 260. So you have to take at least 25 days off.

It's probably positive for IR35. Instead of telling you which days to work, they are giving you that responsibility, just saying that you have to keep within their budget. I'd certainly argue, if challenged, that this clearly demonstrates they AREN'T exercising control on when you work, the only limitation they are putting on is how much work they are willing to pay.

They could have said, "Max budget for the year is £X and contractor not to work in excess of that amount" but then they'd have to customise it for every contractor based on rate. This lets them just have a standard clause.

[mudskipper]

Perhaps you could negotiate to say that you are contracted for 235 days (or whatever) over a 12 month period instead - I'd be happier with that wording.

[LondonManc]

They've budgeted to pay for up to 235 days a year, but not 260. So you have to take at least 25 days off.

It's probably positive for IR35. Instead of telling you which days to work, they are giving you that responsibility, just saying that you have to keep within their budget. I'd certainly argue, if challenged, that this clearly demonstrates they AREN'T exercising control on when you work, the only limitation they are putting on is how much work they are willing to pay.

They could have said, "Max budget for the year is £X and contractor not to work in excess of that amount" but then they'd have to customise it for every contractor based on rate. This lets them just have a standard clause.

+1

WWIBS

Exactly as I read it too, both from an understanding and an IR35 point of view. They don't care how you structure your non-billing days. If you want to work non-stop, get your work completed and then start a new gig in month 12, it could even work to your advantage. My target billed days for a year is 220, so you're easily above that.