Signing Opt-in/Opt out Working Regulations and not PAYE contractor

[Willy Win]

Currently going through onboarding process with agency for an Outside IR35 contract via my Ltd company with large end client. I am still to receive the SDS but the recruitment agency's onboarding team sent a form to state my decision to either opt in or opt out of the 48 hour plus related Working Time Regulations 1998. This clearly states that this form relates to PAYE contractors only, which I already know anyway.

The consultant keeps pressing me to complete and sign it regardless, but opt for the not agreeing to waive my right to work a maximum 48 hour per working week, and that the team will pick it up and store as an unsigned copy, and that if I refuse, they cannot continue the process without it. Basically it's all done through DocuSign. Surely by even signing/ completing the form I would be saying to HMRC that I am a PAYE worker and thus caught by IR35, regardless of whether the contract and Working arrangements are IR35 compliant? I have tried explaining this a few times but consultant has said that as the form is at "the highest level of compliance " for themselves, they cannot place our screen me further if it is not signed!

[SueEllen]

Tell the agent that it says "PAYE contractor" and as you aren't one can they send you the correct form to sign.

If they refuse unless you have spoken to the client directly then the agent could be lying about the status of the contract.

[Willy Win]

I have had the contract reviewed by Qdos who have concluded that, save some minor adjustments, it is IR35 compliant. The role was advertised as £400 per day but with did not state whether inside or Outside IR35. However, the agent confirmed a number of times it is Outside.

I did however have visibility of a Work Order from the end client which was naively forwarded as an attachment in a previous email by the consultant, that states "Fees payable for the Agency Worker: £520 per day." That's too massive a markup to be commission. When I pointed this out the Consultant told me just to ignore that as it is for the wrong person (even though my name is stated against "Name of Agency Worker. " Has this been a complete stitch up? Failing to see why the contract sent to me would be IR35 compliant yet other details do not add up.

[cojak]

We can’t say for definite if it’s a stitch-up, but you need to consider your options now if it becomes one.

[Willy Win]

We can’t say for definite if it’s a stitch-up, but you need to consider your options now if it becomes one.

I've been forwarded the SDS which states that the CEST tool has reached the conclusion that IR35 legislation will not apply to this engagement with one of the reasons listed as "The individual has no right to substitute." This is a complete contradiction. The other reasons are that there isn't a high enough level of control exerted on the individual and no mutuality of obligation between end client and individual

[Lance]

This makes no sense at all.

However if you have an SDS that states outside ir35 the it sounds like you’re in the clear. But…. Who did the SDS? It needs to be the client. But it sounds like whoever I’d it doesn’t understand it.

[malvolio]

This makes no sense at all.

However if you have an SDS that states outside ir35 the it sounds like you’re in the clear. But…. Who did the SDS? It needs to be the client. But it sounds like whoever I’d it doesn’t understand it.

Equally likely the agent has done it and the role will mysteriously revert to inside fairly soon. It's not like there isn't precedent for this happening...

Personally I would walk away now. Both the OP and the client are at risk from this situation as it stands.

[Willy Win]

Who did the SDS? It needs to be the client. But it sounds like whoever I’d it doesn’t understand it.

The SDS came from the end client

[Willy Win]

Baffled. I have not yet agreed with certain clauses in the contract, which I corresponded with the agency about (and awaiting feedback) nor signed it, yet without my permission, the agency has arranged with the client to have IT equipment sent to my address which arrived today. I had already stated not to have anything sent because I had not yet agreed to or signed the contract. Where do I stand here?

[cojak]

Contact the end client and tell them to collect the stuff they sent you.

This is beginning to look more like an agency stitch-up - they are trying to bulldoze you into accepting the contract by arranging it around you.

I would bet a pound to a penny that this is inside IR35 as well.