No Contract

[Mordac]

(Mal's right about the notice period by the way)

If it were me, I'd take the early start date without the contract on this occasion, but only because I've had previous (albeit unsuccessful) dealings with them. Get everything (particularly rate) in writing though, never accept a verbal confirmation.

[Sockpuppet]

If it were me, I'd take the early start date without the contract on this occasion, but only because I've had previous (albeit unsuccessful) dealings with them. Get everything (particularly rate) in writing though, never accept a verbal confirmation.

I've been working for 4 weeks without a contract. My reasoning is I have contract stating that I start on X date and get paid £ a day plus Tesco have deep pockets and are unlikley to go tits up.

[Lucy]

Thanks everyone.

I've never heard of the notice period problem, the management co. I work through put one in my last contract and given it ended badly, it seemed to be a good idea.

Does it look bad for IR35 ?

[malvolio]

If you have a notice period, in effect you can insist on being paid when there is no work, and the client can insist on you working when there is no work. That is the classic definition of Mutuality of Obligaiton, and if there is Mutuality, you will be considered to show employee-like obligations and so you should be paying IR35 as a disguised employee. Or to be more precise, none on your side - you are then engaged to deliver a piece of work, whereas the client may well ask to have a notice period from you to leave them before that work is complete. Then no notice period to you equals no Mutuality which equals no IR35. (The usual analogy is the guy fitting your new kitchen. How much notice would you expect from him before he leaves with the job half done?)

So no, you don't need one and shouldn't have one. A client can dump you immediately on any one of half a dozen pretexts anyway, so it has no commercial value.

[Ardesco]

Don't forget that if you start work now it will be assumed that you have legally accepted the terms of the contract in a court of law. So if you get the contract back after it has been reviewed and want to make amendments the agent can tell you to sod of, he's not changing a thing because you are already legally bound and there is nothing you can do about it.

[Denny]

If you have a notice period, in effect you can insist on being paid when there is no work, and the client can insist on you working when there is no work. That is the classic definition of Mutuality of Obligaiton, and if there is Mutuality, you will be considered to show employee-like obligations and so you should be paying IR35 as a disguised employee. Or to be more precise, none on your side - you are then engaged to deliver a piece of work, whereas the client may well ask to have a notice period from you to leave them before that work is complete. Then no notice period to you equals no Mutuality which equals no IR35. (The usual analogy is the guy fitting your new kitchen. How much notice would you expect from him before he leaves with the job half done?)

So no, you don't need one and shouldn't have one. A client can dump you immediately on any one of half a dozen pretexts anyway, so it has no commercial value.

If the contract appears to be inside IR35 then you may as well have a notice period and take advantage of it if the client screws you. It's happened to me twice now and frankly I don't mind at all sitting on my backside for 30 days at home looking for work at the client's expense.

It's only if you're working strictly B2B without any client control, preferably from your own place of work rather than expected to work on client site full time that a notice period seems a bit odd in a contract. Having said that, you can still escape IR35 inclusion if you have notice but all the other ingredients are there for IR35 exemption. I had my contract checked out by Qdos and they said that mutual notice was not a problem for IR35 exemption.

[Lucy]

Don't forget that if you start work now it will be assumed that you have legally accepted the terms of the contract in a court of law. So if you get the contract back after it has been reviewed and want to make amendments the agent can tell you to sod of, he's not changing a thing because you are already legally bound and there is nothing you can do about it.

Thanks for your advice Ardesco.

I probably can't do anything at this stage, I could send the agency an email saying my beginning the work doesn't constitute endorsement of the contract (if that is worth anything...).

Am beginning to have doubts about management company - they have not told me about these things.

[malvolio]

If the contract appears to be inside IR35 then you may as well have a notice period and take advantage of it if the client screws you. It's happened to me twice now and frankly I don't mind at all sitting on my backside for 30 days at home looking for work at the client's expense.

It's only if you're working strictly B2B without any client control, preferably from your own place of work rather than expected to work on client site full time that a notice period seems a bit odd in a contract. Having said that, you can still escape IR35 inclusion if you have notice but all the other ingredients are there for IR35 exemption. I had my contract checked out by Qdos and they said that mutual notice was not a problem for IR35 exemption.

Denny, pay attention, you're arguing it backwards - if you haven't got a mutual notice arrangement, you are not inside IR35 since there is a clear pointer away from employment: employees get notice, suppliers don't.

[Denny]

Denny, pay attention, you're arguing it backwards - if you haven't got a mutual notice arrangement, you are not inside IR35 since there is a clear pointer away from employment: employees get notice, suppliers don't.

Disagree. If the client expects you to work on the client site using their equipment, fails to recognise that you can take on other clients or use a substitute, supervises your hours to make sure you're working full time for your fee and only 'allows you to work from home on certain permitted days' - in other words behaving like any other employee, which is the reality with a lot of contractors, irrespective of what their contract terms are with the EB, then you are sure as hell going to be inside IR35 should an investigation ensue.

According to your thinking, you are only exempt from IR35 at the end of the contract when you're being terminated - and without notice. That to me just means getting the worst of both worlds. Pointers to IR35 exemption require many factors to be taken into account than just an omission of a notice period in your contract. Do you honestly think that the IR would let you off IR35 inclusion just because you were booted out without notice? What about tax arrangements prior to the contract starting or once started. If, in practice, you are inside not outside IR35 then you would have been wise to channel your fees through a costly umbrella solution and not pay salary and divis from your own limited which would more than likely be less cost effective than brollies if inside IR35. For that reason alone I would certainly want my notice period honoured as I'd have nothing to lose.

[malvolio]

I disagree with your disagreement and raise you case law. It has been shown that having any one of the three key pointers - no Moo, RoS, no D&C - is enough for a skilled representative to argue that the contract is outside IR35. The reverse is not however true, you have to not have (if you see what I mean!) all three to be irretreivably inside.

The problems will start when Hector finally gives up on IR35 Mk2 (where we are now) and comes up with a properly-worded IR35 Mk3. Right now, however, for a great majority of contractors, it remains voluntary.