Issue with first contract

[northernladuk]

I don't do the deemed salary thing if that's what you mean. I know tax is necessary and they need to spend it on all sorts of important things but personally I can't afford it what with the cost of flying, Michelin restaurants, good Marlborough Sauvignon Blanc etc .

Why does a restaurant need a Michelin recommendation? Surely the chef is well known so should know what he is doing right?

[billybiro]

Big agencies are stupid, I can assure you there are a lot of terms you wouldn't want in a contract.
I actually work with the biggest in the city and I have to tell them things about compliance, go figure.

QQFY, what do you think HMRC looks at first?

The contract.

Therefore, it may be that on seeing a compliant one, they then leave well alone.

Whilst it's certainly a valid point to at least try to get the contract changed to have more favourable terms, isn't it also true that HMRC will take actual working practices into account just as much, if not more so, that the wording on the contract?

Given that case, I can kind of understand Cirrus's point. Your contract can be watertight, but if you get in there and on day one the client wants to treat you effectively as a "temporary permie" (as so many clients seem to want to do), then there's really very little you can do to be absolutely sure you're outside IR35 (short of terminating the contract).

[SueEllen]

I'm afraid so.

As a matter of interest there are two reasons. The first is I've never seen a contract that looks problematic to me. I deal with big agencies and they're not stupid.

The second reason is I've never seen a single shred of evidence that fiddling around with contractual terms has made one iota of difference to any IR35 outcome. Who knows - I may be wrong but I don't do things on pure faith.

If you can point me to some case that proves me wrong, believe me: I'm all ears

The reason to get contracts change is not just IR35 terms.

Some agencies especially large agencies put clauses in where they can do what the f*** they like with your personal data without asking you first. Are you happy for them to sell your name, age, address and telephone number plus random other details like who you bank with?

Some agencies including large ones have very unfair termination clauses where they can refuse to pay you if you are terminated.

There are also clauses where they can refuse to pay you unless the client pays you. If the client goes bust, and very large companies have gone bust, you end up out of pocket.

[billybiro]

There was a substitution clause in the lower level agreement but this could only be used where the AA had expressly agreed to it. Each notional contract would therefore have been for the services of Jon Bessell and that a replacement worker could be used only if the AA had firstly given notice that a particular substitute was acceptable.

QDOS et al would have failed a contract that allowed AA this. They would have had it reworded that the AA could only refuse if the candidate was wholly unacceptable or words to that effect...

FWIW, of all of the changes I've ever needed to contracts, the whole substitution clause has been one of the most difficult to get changed - if the client will even accept any changes.

They have almost always insisted that they have the "right" to vet any substitute that I may offer, and refuse them without even giving reason. Thereby making the contract effectively tied to you (the consultant) personally, rather than your Ltd.

[northernladuk]

Whilst it's certainly a valid point to at least try to get the contract changed to have more favourable terms, isn't it also true that HMRC will take actual working practices into account just as much, if not more so, that the wording on the contract?

Given that case, I can kind of understand Cirrus's point. Your contract can be watertight, but if you get in there and on day one the client wants to treat you effectively as a "temporary permie" (as so many clients seem to want to do), then there's really very little you can do to be absolutely sure you're outside IR35 (short of terminating the contract).

Indeed but carrying out even a modicum of diligence has got to be better than sticking your thumb up your arse and pretending everything is OK? If the difference between an investigation starting or failing at the first hurdle is some paperwork showing it was passed by a reputable body surely that makes it worth it's weight in gold. If you've got PI/Pl with QDOS it's free.

I can't help thinking such an approach to the contract reflects someones approach whilst they are in contract as well.

[SueEllen]

FWIW, of all of the changes I've ever needed to contracts, the whole substitution clause has been one of the most difficult to get changed - if the client will even accept any changes.

They have almost always insisted that they have the "right" to vet any substitute that I may offer, and refuse them without even giving reason. Thereby making the contract effectively tied to you (the consultant) personally, rather than your Ltd.

Mine are changed to say the substitute must have a similar skill set and the client cannot unreasonably refuse them. So the client's get out clause is stating they are missing a skill as that's not unreasonable.

[JRCT]

I can't help thinking such an approach to the contract reflects someones approach whilst they are in contract as well.

100% agree with this. In one of my first few contracts, about 4 permies left within a month and 2 were sacked (nothing to do with me, honest). Panic stations for the BAU team and I got caught up in forgetting my contracted work and just helping out.

In my current contract, and a bit wiser, I'm pushing back on this kind of pressure where fellow contractors are happy to 'help out' with whatever they're asked to do.

I think I'm right to stick to what I was brought in to do and what my contract states.

[northernladuk]

FWIW, of all of the changes I've ever needed to contracts, the whole substitution clause has been one of the most difficult to get changed - if the client will even accept any changes.

They have almost always insisted that they have the "right" to vet any substitute that I may offer, and refuse them without even giving reason. Thereby making the contract effectively tied to you (the consultant) personally, rather than your Ltd.

Same clause has tripped me up as well but I've always managed to have it changed and the new agreement reflected in a Confirmation of Arrangements to prove the client is aware of the change. Well the few times I've managed to get a CoA signed anyway.....

[LucidDementia]

I've never had a contract changed in nearly 30 years of contracting

Perhaps the most imbecilic thing I have ever read on this forum.

You're either lying about the contracts, lying about the 30 years or you are an absolute arse.
What an utterly moronic way to run a business.

[Cirrus]

I can't help thinking such an approach to the contract reflects someones approach whilst they are in contract as well.

Someone's approach to what whilst they are in contract? If you mean contracts, I have had long contractual battles on behalf of clients with the biggest vendors. And won. But I don't pick fights for zero gain.