State of the Market

[andromedan]

If you had a european passport, where would you go as an IT contractor?

Asking to you all.

The situation does look dire in the UK.

In order to do contracting or work perm?

[FIERCE TANK BATTLE]

Had a chuckle at this earlier:

1) You approve your verbal acceptance for Gibbs Hybrid to represent you for IBM (Banking Client)
2) You are aware that these roles are based in As above
3) The daily rate will be: £450-£495 per day inside
4) You do not have any CCJ’s or Bankruptcies against you to the best of your knowledge.
5) You are aware that the role is initially 6 months,and the working hours are 40 hours per week (set by IBM).
6) Please note that should you be successful, IBM have the following notice clause in their contract: IBM - 7-day notice, You: Must complete duration of contract. Please also confirm your verbal acceptance.


If you want a contractor to definitely complete the duration of the contract, perhaps you should hire them *outside* IR35, rather than as a no rights employee...

[JustKeepSwimming]

Had a chuckle at this earlier:

1) You approve your verbal acceptance for Gibbs Hybrid to represent you for IBM (Banking Client)
2) You are aware that these roles are based in As above
3) The daily rate will be: £450-£495 per day inside
4) You do not have any CCJ’s or Bankruptcies against you to the best of your knowledge.
5) You are aware that the role is initially 6 months,and the working hours are 40 hours per week (set by IBM).
6) Please note that should you be successful, IBM have the following notice clause in their contract: IBM - 7-day notice, You: Must complete duration of contract. Please also confirm your verbal acceptance.


If you want a contractor to definitely complete the duration of the contract, perhaps you should hire them *outside* IR35, rather than as a no rights employee...

It's irrelevant? Your contract of employment is with the umbrella. 7days/none term relates to IBM - Umbrella contract.

I can't see how a court would uphold a 3rd party employees verbal agreement to complete a whole contract when that employee is 1) Not a party to the contract in question, 2) the 3rd party in question, the Umbrella, has no seen or agreed to the contract. Afterall you are not currently an employee of the Umbrella, so you are not in a position to make any promises on behalf of your future employer, nor can you.

It's another case of Agents not understand contract law.

[FIERCE TANK BATTLE]

If you had a european passport, where would you go as an IT contractor?

Asking to you all.

The situation does look dire in the UK.

Personally I'm gonna try and go to belgium I think, just for something new, and there seem to be various jobs there which are english speaking. I want to learn French then I'll move elsewhere in Europe.

[ladymuck]

If you had a european passport, where would you go as an IT contractor?

Asking to you all.

The situation does look dire in the UK.

I do like Portugal. I'd give that a go. Malta is nice to visit but not sure I could live there. I'd explore more interesting options like Estonia or Bulgaria too. If I had a remote gig then I'd probably move around, doing three to six month turns here and there to try out different places. I dread to think what my tax situation would end up as

[FIERCE TANK BATTLE]

It's irrelevant? Your contract of employment is with the umbrella. 7days/none term relates to IBM - Umbrella contract.

Why would there be an umbrella?

But even if there was, IBM can't possibly make such a demand. If they want someone that is going to stick around for 6 months they would need to draw up a 6 month fixed term contract, with penalties for breaking it. Which runs contrary to being an employee and thus can't possibly be an inside role, you can't compel an employee to work for you thanks to modern slavery laws.

At least, that was my take on it.

[JustKeepSwimming]

Why would there be an umbrella?

But even if there was, IBM can't possibly make such a demand. If they want someone that is going to stick around for 6 months they would need to draw up a 6 month fixed term contract, with penalties for breaking it. Which runs contrary to being an employee and thus can't possibly be an inside role, you can't compel an employee to work for you thanks to modern slavery laws.

At least, that was my take on it.

Because it's an inside contract?

No, if you are running an inside contract via your LTD and you agree to the terms then it's tough, the LTD is liable. As a rule of thumb penalty clauses are not enforceable under E&W law (although we can argue about the merits of the abomination that is Parkingeye v Beavis), and most lawyers will strongly advise against them.

If you are running via your LTD and you breach the contract then the LTD is liable for any losses accrued during the period of replacing you, which can easily far exceed the value of the contract.

The only way IBM can enforce the term via an umbrella is if the umbrella accepts the term AND the umbrella incorporate the term in the contract with you, which doesn't happen.

As an aside. No, modern slavery legislation, or any legislation, does not prohibit unequal notice periods or minimum terms of service. Public police consideration will come into it, but if you have the competency to agree to a contract for X service with no notice period then it is binding. Case in point, modern slavery legislation does not mention the military, yet the military mandates minimum service of 4~ years.

Another rule of thumb, public policy respects the freedom of contract without undue interference from the government.

Strictly, you can't compel anyone in this country to do anything, that doesn't mean there aren't financial or legal consequences if you don't.

[FIERCE TANK BATTLE]

Because it's an inside contract?

No, if you are running an inside contract via your LTD and you agree to the terms then it's tough, the LTD is liable. As a rule of thumb penalty clauses are not enforceable under E&W law (although we can argue about the merits of the abomination that is Parkingeye v Beavis), and most lawyers will strongly advise against them.

If you are running via your LTD and you breach the contract then the LTD is liable for any losses accrued during the period of replacing you, which can easily far exceed the value of the contract.

The only way IBM can enforce the term via an umbrella is if the umbrella accepts the term AND the umbrella incorporate the term in the contract with you, which doesn't happen.

As an aside. No, modern slavery legislation, or any legislation, does not prohibit unequal notice periods or minimum terms of service. Public police consideration will come into it, but if you have the competency to agree to a contract for X service with no notice period then it is binding. Case in point, modern slavery legislation does not mention the military, yet the military mandates minimum service of 4~ years.

Another rule of thumb, public policy respects the freedom of contract without undue interference from the government.

Strictly, you can't compel anyone in this country to do anything, that doesn't mean there aren't financial or legal consequences if you don't.

Sounds like if there is an umbrella in this case, they are simply passing the terms onto you and washing their hands of them, so it does sound like it's what could be happening if there's an umbrella.

I know some contractors that will sign literally anything without even looking or questioning it. I've worked with some before. It means that if you raise an issue that the recruiters get annoyed because 'the other contractor signed it without a problem'.

Incidentally, modern slavery laws have specific named exemptions for military service.

Would be curious to see what has happened in the past with employees of umbrellas creating trouble enough for the client to take legal action, like how it's passed on.

From what I can see, being an employee shields you from a lot of financial liability, like if you accidentally break something expensive at work, it doesn't come out of your salary.

> Vicarious Liability, by law, employers can be held vicariously liable for certain acts of their employees. This means even where the employer has itself technically done no wrong, it can still be found responsible for employees’ actions and made to financially compensate the victim of the wrongdoing.

It wouldn't surprise me if this applied to an employee that leaves a contract early. Personal circumstances might force them to leave and I would imagine employment law would protect them, at least to the value of finding and replacing them. Perhaps this kind of thing should happen a bit more often to remind HMRC what a stupid idea inside IR35 is.

[JustKeepSwimming]

Sounds like if there is an umbrella in this case, they are simply passing the terms onto you and washing their hands of them, so it does sound like it's what could be happening if there's an umbrella.

IME Umbrellas extend their standard terms and do not deviate. Clients (in reality the agents) agree to those terms. Terms effectively being 'no timesheets, no pay, **** the rest'.

I know some contractors that will sign literally anything without even looking or questioning it. I've worked with some before. It means that if you raise an issue that the recruiters get annoyed because 'the other contractor signed it without a problem'.

Most people, let alone contractors, don't bother reading the small print.

Incidentally, modern slavery laws have specific named exemptions for military service.

Sauce?

Would be curious to see what has happened in the past with employees of umbrellas creating trouble enough for the client to take legal action, like how it's passed on.

I can't find any precedent on it. People forget that just because you *may* have a legal right doesn't mean it makes commercial sense to pursue.

From what I can see, being an employee shields you from a lot of financial liability, like if you accidentally break something expensive at work, it doesn't come out of your salary.

> Vicarious Liability, by law, employers can be held vicariously liable for certain acts of their employees. This means even where the employer has itself technically done no wrong, it can still be found responsible for employees’ actions and made to financially compensate the victim of the wrongdoing.

It wouldn't surprise me if this applied to an employee that leaves a contract early. Personal circumstances might force them to leave and I would imagine employment law would protect them, at least to the value of finding and replacing them. Perhaps this kind of thing should happen a bit more often to remind HMRC what a stupid idea inside IR35 is.

As it stands if you agree you aren't agreeing as an employee of an Umbrella. Vicarious liability doesn't apply. If you were an employee of an umbrella and you happened to make such a promise representing the umbrella then the umbrella could be held liable. Although it would turn on whether it was reasonable and appropriate for the promisee to think promiser was in a position to make such a promise. If customer service employee at Tesco said 'Oh tulip, sorry you got food poisoning, we will pay £1 million compensation', that would not be held valid. No reasonable person would think that is something within their power to promise.

If it was reasonable for the client to believe the employee of the umbrella could make such a promise, it would still only bind the Umbrella, not the employee. The umbrella would have a separate cause of action against the employee. There is no direct connection between the client and the umbrella employee.

[FIERCE TANK BATTLE]

Sauce?

It's actually the EHCR

Article 4 § 3 (b) excludes from the scope of “forced or compulsory labour” prohibited by Article 4
§ 2 “any service of a military character or, in case of conscientious objectors in countries where they
are recognised, service exacted instead of compulsory military service” (Bayatyan v. Armenia [GC],
§ 100; Johansen v. Norway, Commission decision).

As it stands if you agree you aren't agreeing as an employee of an Umbrella. Vicarious liability doesn't apply. If you were an employee of an umbrella and you happened to make such a promise representing the umbrella then the umbrella could be held liable. Although it would turn on whether it was reasonable and appropriate for the promisee to think promiser was in a position to make such a promise. If customer service employee at Tesco said 'Oh tulip, sorry you got food poisoning, we will pay £1 million compensation', that would not be held valid. No reasonable person would think that is something within their power to promise.

I thought the point was that you *are* an employee of the Umbrella, that being the whole point of IR35.

If you were working for Tesco and you accidentally turned the fridge off and someone bought an item and got food poisoning, you wouldn't be liable to pay the costs if they're sued, provided it wasn't gross misconduct. The same if you're working for a company that in turn works for Tesco. Tesco might be justified in suing that company, who would arguably be liable, it's just a b2b transaction, but that business' employees wouldn't be liable. That is why the whole thing baffles me. If you want the benefits of inside IR35 to exploit workers, then you should also suffer the negatives such as their increased protection.

I also don't necessarily think what might and might not be promised is applicable. For example, I promise to work 6 months, what happens if I am ill, or I get pregnant? The contract doesn't trump other employee protections, surely.