Badenoch & Clark - Standard Contract Fails IR35?

[Sockpuppet]

Request for help here guys.

This is the standard contract that Badenock & Clark (BClark) send out. Had this reviewed by Bauer & Cottrell (BCott) and they said it would fail an IR35 test.

I can't believe this is the first time that this contract has been checked (its remained the same since Sept 2006 - its a pdf terms each person gets) and at least one other CUK'er has had it reviewed as IR35 safe.


Personally I don't know enough about IR35 to know if the wording is really that important as they both seem to accomplish the same to me.


The 3 biggies.

Control is covered very well so not an issue.

MOO:

BClark has this in the contract:

2.1 There is no obligation on B&C or on the Client to offer to the Supplier
any other work beyond that specified in this Agreement, and no
obligation on the Supplier to accept any other work that may be
offered.

2.2 On termination of this Agreement B&C is not obliged to offer the
Supplier the opportunity to perform further services and the Supplier
is not obliged to accept any such further opportunity that may be
offered.

BCott wants:

B&C or the Client are not obliged to offer the Representative any work and if offered the Representative is not obliged to accept. No party wishes to create or imply any mutuality of obligation between themselves either in the course of or between any performance of the Services including any notice period. B&C is not obliged to pay the Supplier at any time when no work is available during this agreement.

Substitution - BClark has:

6.1.7 not sub-contract to any third party any of the services that it is
required to perform under any Assignment, save as permitted by this
Agreement;
6.1.8 agree that the consideration for the agreement by the Representative
in this clause and clause 10.7 is the agreement between the Parties,
where it is applicable; and
6.1.9 provide the Services through the Supplier limited company named
in the Assignment Schedule. Should either the Supplier or its
Representative choose to supply the Services under a differently
named limited company then an administration fee of £100 shall be
payable by either the Supplier or its Representative (as applicable) to
B&C.

10.7 is don't work for them for 12 months clause.

BCott Wants:

The Supplier may propose a substitute, B&C and the Client have the right to reject the substitute on any reasonable grounds.

Cheers for the help.

[Qdos Contractor]

I'd imagine their decision was a borderline one. Substitution seems to be covered quite well under the definition of 'Representative' on the first page.

I have seen a number of different Badenoch & Clark contracts - some bad, some good. This looks like one of the better ones, but you should do all you can to strengthen it.

[VectraMan]

The MOO clauses seem to specify what happens after the contract has finished. You still have MOO during the contract.

[Sockpuppet]

The MOO clauses seem to specify what happens after the contract has finished. You still have MOO during the contract.

Thanks for the replys guys.

The legal department are refusing to put these extra clauses into as they are the "same as already in there, just worded differently".

After reading Qdos comments about representative then I'm really only going to push for the MOO one to be copied into the assignment.

[Old Greg]

I have a Badenoch and Clark contract (IR35_TOB)

On the 1st page in its definition of terms it says:

Representative means the person or persons named in the Assignment Schedule and supplied by the Supplier in the provision of the
Services for the purposes of the Assignment, or any other individual so supplied in accordance with this Agreement,
as agreed with B&C from time to time (which agreement may only be withheld on reasonable grounds related to
the qualifi cations and experience of the proposed substitute Representative). The Supplier remains responsible
for sourcing and remunerating such replacement Representative, and for the Services performed utilising such
replacement Representative.

Sorry for the formatting. That should in my view cover Right of Substitution. Any views, anyone?

[TheFaQQer]

Thanks for the replys guys.

The legal department are refusing to put these extra clauses into as they are the "same as already in there, just worded differently".

After reading Qdos comments about representative then I'm really only going to push for the MOO one to be copied into the assignment.

If they are the same, just worded differently, then there should be no objection to changing it!

Walk.

[Sockpuppet]

Right.

Been bashing on at this all week - must say I'm very impressed with Sarah @ Bauer & Cottrell

Going to start tommorrow with no contract....seems to be a running theme here given my last contract with Badenoch I had no contract.

They are getting the directors of Badenoch & Clark to agree if thier terms and conditions do indeed fall foul of IR35 then there is a possibility that they may be updated / changed if they agree for the terms that me and Sarah are pushing for.

Plus one I am there working for the client it may give me more bargaining power.

Will keep you guys updated as it could affect some contractors on here that are contracting through Badenoch & Clark who may not be outside IR35.

*DISCLAIMER: I'm not saying the contract fails for definate..I dont know if its been tested by HMRC and judged on. This was just result of my due-dilligance at the start of the contract".

[Hex]

You should send the agency an e-mail (a letter may be better but given the timescale I don't think you can do this). In the e-mail tell them you are starting work romorrow on the understanding that the changes that you require will be made to the contract, and that if they do not make those changes then the contract is null and void.

If you don't do this you will have accepted their contract without the changes by implication by virtue of having started work.

[DBA_bloke]

(A Novice Writes): Isn't starting a gig without the paperwork all done & dusted asking for big trouble?

[TheFaQQer]

(A Novice Writes): Isn't starting a gig without the paperwork all done & dusted asking for big trouble?

Yes.

Next.