Asking Agency for visibility of end-client contract?

[Spikeh]

I know this isn't the done thing, but with more and more focus being put on IR35 these days I'm considering starting to ask agencies to see the agency -> client contract as well as the contractor -> agency contract so I can check for consistency.

I haven't signed an agency contract in years that I haven't had modified in some way - my concern is that its possible that the agency -> client contract may be significantly different, effectively selling a disparate service than the one I'm offering to that particular client. I am very explicit these days about describing the services rather than just stating the job title on the contract schedule (amongst other things).

I've heard agents directly referring to contractors as "essentially temporary employees" whilst I've been in the room, so god knows what they say behind closed doors to keep clients happy. This is extremely damaging - especially considering the amount of effort I put into making sure my client relationships are completely B2B.

What are people's thoughts on this? Is there a legal case for asking for visibility, or do you think I'm going to get nowhere fast? =]

[ladymuck]

It's a perfectly valid ask but do expect it to be refused. Such things tend to contain commercially sensitive information that agencies/clients don't want anyone seeing. However, seeing as HMRC use these contracts as a nice noose to put your head through, it would be good to have some transparency.

Perhaps, if an agency refuses to hand over the contract they have with your client, you could ask them for a statement confirming there are no clauses in the agency>client contract that would impact yourCo's IR35 status and request that it is signed by a suitably authorised person who can represent the agency.

[Spikeh]

It's a perfectly valid ask but do expect it to be refused. Such things tend to contain commercially sensitive information that agencies/clients don't want anyone seeing. However, seeing as HMRC use these contracts as a nice noose to put your head through, it would be good to have some transparency.

Perhaps, if an agency refuses to hand over the contract they have with your client, you could ask them for a statement confirming there are no clauses in the agency>client contract that would impact yourCo's IR35 status and request that it is signed by a suitably authorised person who can represent the agency.

Yes, this would be my next action if they won't let me see it. I do fully expect to be rejected, but I wondered if anyone else had direct experience of this, or any success?

[TheFaQQer]

Perhaps, if an agency refuses to hand over the contract they have with your client, you could ask them for a statement confirming there are no clauses in the agency>client contract that would impact yourCo's IR35 status and request that it is signed by a suitably authorised person who can represent the agency.

You could even go slightly further and try to include a clause in your contract that says that where your contract differs from the one between agency and client, it is your contract that takes precedent.

[ladymuck]

You could even go slightly further and try to include a clause in your contract that says that where your contract differs from the one between agency and client, it is your contract that takes precedent.

Nice. I like that; noted for the future

[Spikeh]

You could even go slightly further and try to include a clause in your contract that says that where your contract differs from the one between agency and client, it is your contract that takes precedent.

I like it.

[billybiro]

I've heard agents directly referring to contractors as "essentially temporary employees" whilst I've been in the room

And they would probably be 100% correct.

Here's the clues:
Does your personal name appear anywhere on the contract between YourCo and [other party] (other than as signatory for YourCo)?
If so, you're a disguised employee.

Do you have a genuine right of substitution (i.e. not one where the client can simply refuse a substitute for any reason they please)?
If not, you're a disguised employee.

[Spikeh]

And they would probably be 100% correct.

Here's the clues:
Does your personal name appear anywhere on the contract between YourCo and [other party] (other than as signatory for YourCo)?
If so, you're a disguised employee.

Do you have a genuine right of substitution (i.e. not one where the client can simply refuse a substitute for any reason they please)?
If not, you're a disguised employee.

If it was that clean-cut, HMRC investigations wouldn't take years to complete. Neither of those points are cut and dry proof that you are a disguised employee, but I'm not about to get into a debate about it as we'll be here all day

[northernladuk]

If it was that clean-cut, HMRC investigations wouldn't take years to complete. Neither of those points are cut and dry proof that you are a disguised employee, but I'm not about to get into a debate about it as we'll be here all day

And you do right to ignore that particular post.

Bearing in mind a vast number of contractors don't even know what they are and if they are really are employed or not I wouldn't expect agents to understand so would just disregard whatever they say. As long as your contract and all the other stuff we talk about is in order then their misguided view on what we are or aren't won't matter one jot.

[Spikeh]

And you do right to ignore that particular post.

Bearing in mind a vast number of contractors don't even know what they are and if they are really are employed or not I wouldn't expect agents to understand so would just disregard whatever they say. As long as your contract and all the other stuff we talk about is in order then their misguided view on what we are or aren't won't matter one jot.

Indeed. Been a contractor for over 10 years now (with a good portion of that focusing on freelance engagements rather than the traditional agency route). Been there, done that - spend more time than most people probably do making sure both paperwork, projects and relationships are as clean-cut as possible.

I come across an uncanny number of the aforementioned permtractors - tend to let them get on with it.