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New IR35 'Friendly' contract? Dodgy agents?

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  • Lance
    replied
    Originally posted by SussexSeagull View Post

    By clients deciding if they want to engage a contractor or an employee.
    And if the worker turns out to need SDC? Or the manager wants to exercise it? What then?
    You'd be happy with the client changing your SDS? As they are entitled to do.

    I understand your point, but it won't stand up to reality. HR/legal/procurement/finance make these decisions. The managers/handers/whatever will work in their own way. How often have we come across a client that wants to exercise full control?
    And how often to 'contractors' suck it up?

    When HR/legal/procurement/finance have to carry the can for the liability they're not going to take risks.

    Leave a comment:


  • SussexSeagull
    replied
    Originally posted by Lance View Post

    die

    How can it be made up front when the working practises aren't know?
    By clients deciding if they want to engage a contractor or an employee.

    Leave a comment:


  • northernladuk
    replied
    Originally posted by Paralytic View Post
    Contractors who are confident that they fit with the supplier model should not really be concerned by this.
    But that's probably most of them, even the tulip ones that don't have a clue

    Leave a comment:


  • Paralytic
    replied
    Originally posted by eek View Post

    IPSE was one of the people who requested the rules changed from statements in advance of work beginning to statement prior to first payment because as Lance states the actual method of working won't be known until work has started (especially say when a contract that should be outside but the behaviour moves towards an inside contract).
    In a perverse sort of way, this makes sense. It will focus the mind of the "true" contractor (ie. not just a disguised employee) to ensure their working practices fit with what they expect to be an outside determination and that should in turn cause frank discussions with the client about their own expectations at to whether they truly regard the contractor as a supplier or a as disguised employee.

    Contractors who are confident that they fit with the supplier model should not really be concerned by this.

    Of course, there is always that risk that a client gets nervous and issues an inside determination even if the contract and working practices would otherwise indicate, especially if the contractor has a signed something indemnifying the agency/client.
    Last edited by Paralytic; 28 March 2021, 19:31.

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  • eek
    replied
    Originally posted by SussexSeagull View Post
    This sort of thing needs to be nipped in the bud before it becomes widespread. The assessment should be made up front then the dye is cast. If it leads to cautious assessments then that is one thing but they need to own the decision.
    IPSE was one of the people who requested the rules changed from statements in advance of work beginning to statement prior to first payment because as Lance states the actual method of working won't be known until work has started (especially say when a contract that should be outside but the behaviour moves towards an inside contract).

    Leave a comment:


  • Lance
    replied
    Originally posted by SussexSeagull View Post
    This sort of thing needs to be nipped in the bud before it becomes widespread. The assessment should be made up front then the dye is cast. If it leads to cautious assessments then that is one thing but they need to own the decision.
    die

    How can it be made up front when the working practises aren't know?

    Leave a comment:


  • SussexSeagull
    replied
    This sort of thing needs to be nipped in the bud before it becomes widespread. The assessment should be made up front then the dye is cast. If it leads to cautious assessments then that is one thing but they need to own the decision.

    Leave a comment:


  • Twoshrubs
    replied
    Thank you all for the feedback.
    Some excellent points to raise once the review comes back.

    Thank you.

    Leave a comment:


  • eek
    replied
    Clause 1 and 2 are actually there to allow a determination to change - as it can up to the point the end client pays the first bill so I can't see you getting far there. I don't see any problem with it being there for a agreement that is supposed to be outside but I would insist on the agency being removed from clause 1 (as only the agency is going to be stupid enough to make an appeal that the contract is inside IR35 which is the scenario we care about).

    Clause 3 I suspect is completely illegal and would want a lawyer to explain exactly what it means and remove it - I read it very differently to how Sub is reading it.

    Leave a comment:


  • Sub
    replied
    Originally posted by Twoshrubs View Post
    Hello

    I'm really starting to distrust the agency i'm with, what do you think?

    In respect of Off-Payroll, if either the Contractor and/or the Agency initiate the ‘client-led status disagreement process’ (as set out in the HMRC Employment Status Manual) then at the discretion of either the Contractor or the Agency, payment of the Fees to the Contractor maybe withheld until the dispute in respect of a SDS has been resolved.

    To me it looks like there trying to hold back as late as possible to squeeze this though due to the panic of people not wanting to be out of work.

    Interestingly, the very guidance they are referring to states, which considering there is some "End-User", quite likely to be applicable (or maybe not - that depends on a full supply chain):
    "An agency who is not the deemed employer (see ESM10017) within a contractual chain does not have the right to use the client-led disagreement process."
    From here: https://www.gov.uk/hmrc-internal-man...anual/esm10015

    I find this is very interesting topic - if customer may change determination mid-contract and most importantly any consequences for that with regards to already billed time. My contract for example states that we are engaged on outside basis (SDS provided, etc.) and contains provisions for what if "inside IR35", however not suggesting on any point that this determination can change (within remit of the contract), unless "material" change happen on my side.

    Personally, I would never sign the first one, probably would ask for amendment of second one to clarify when and why determination could change and maybe would ask professional about third. However, third seem to be protection from claims if there is argument between Personnel (you as person) and Contractor (your company) - I had something like this in most of my contracts before reform.
    Last edited by Sub; 27 March 2021, 15:58.

    Leave a comment:

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