Daily Rate - is this clause normal?

[C5/6]

I've always had an hourly up until now, but latest client insists on daily rate, which I don't object to except this clause in the contract:

Fee rate:
Professional Working Day means seven and half (7 and ½) hours each Working Day (i.e Monday to Friday) including the required hours of 10.00 to 12.00 and 14.00 to 16.00 (less half an hour for lunch Monday to Friday between the hours of 12.00 and 14.00). The Professional Working Week is normally a 37.5 hour week but on notification by the Client to the relevant Personnel the Professional Working Week may be extended to up to 45 hours in any week without incurring any overtime charges. Any time spent by the relevant Personnel in excess of the 45 hour Professional Working Week will be charged on an hourly basis at a pro-rated hourly rate of the relevant Fee Rate (“Prorated Rate”) as overtime with prior agreement of the Client Hiring Manager. If the Personnel provides Services during any Professional Working Day for a period which is less than the required minimum of seven and half (7 and ½) hours, the Contractor will only be entitled to charge the Company for the actual hours worked by the Personnel at a pro-rated hourly rate of the relevant Fee Rate (“Prorated Rate”).

Now the rate is ok (not exceptional) for 7.5 hours but awful for 9 would you insist on getting this clause changed or just walk away?

Also Does them stipulating the times in this way put you within IR35?

Steve

[TheFaQQer]

I've always had an hourly up until now, but latest client insists on daily rate, which I don't object to except this clause in the contract:

Fee rate:
Professional Working Day means seven and half (7 and ½) hours each Working Day (i.e Monday to Friday) including the required hours of 10.00 to 12.00 and 14.00 to 16.00 (less half an hour for lunch Monday to Friday between the hours of 12.00 and 14.00). The Professional Working Week is normally a 37.5 hour week but on notification by the Client to the relevant Personnel the Professional Working Week may be extended to up to 45 hours in any week without incurring any overtime charges. Any time spent by the relevant Personnel in excess of the 45 hour Professional Working Week will be charged on an hourly basis at a pro-rated hourly rate of the relevant Fee Rate (“Prorated Rate”) as overtime with prior agreement of the Client Hiring Manager. If the Personnel provides Services during any Professional Working Day for a period which is less than the required minimum of seven and half (7 and ½) hours, the Contractor will only be entitled to charge the Company for the actual hours worked by the Personnel at a pro-rated hourly rate of the relevant Fee Rate (“Prorated Rate”).

Now the rate is ok (not exceptional) for 7.5 hours but awful for 9 would you insist on getting this clause changed or just walk away?

Also Does them stipulating the times in this way put you within IR35?

Steve

I've never specified what a "professional working day" is. Current gig works like that, but I'm late in on a Monday and leave just after lunch on a Friday to travel. I work longer in the week, and less on those days - however every day is as professional as each other.

Don't like the idea of signing up to a 45 hour working week, to be honest - I'd get it changed to something more reasonable.

[malvolio]

That is not a Prodfessional Working Day, it is a 7.5 hour day with overtime allowances. A PWD is "I do some work for you from 0.5 up to 23.99 hours, I charge you a fixed amount".

Core hours can look frightening but are actually fairly neutral wrt IR35, if they are necessary for the work to be done - i.e. if both contractors and permies have to observe them by the nature of the work. However, if you're not in support and do not need direct interfaces with the client at fixed times, they amount to D&C.

Sounds like a job for Bauer and Cotterell, but it doesn't look that good to me. Who's the agency (as if I couldn;t guess!)

[RightLaugh]

I've always had an hourly up until now, but latest client insists on daily rate, which I don't object to except this clause in the contract:

Fee rate:
Professional Working Day means seven and half (7 and ½) hours each Working Day (i.e Monday to Friday) including the required hours of 10.00 to 12.00 and 14.00 to 16.00 (less half an hour for lunch Monday to Friday between the hours of 12.00 and 14.00). The Professional Working Week is normally a 37.5 hour week but on notification by the Client to the relevant Personnel the Professional Working Week may be extended to up to 45 hours in any week without incurring any overtime charges. Any time spent by the relevant Personnel in excess of the 45 hour Professional Working Week will be charged on an hourly basis at a pro-rated hourly rate of the relevant Fee Rate (“Prorated Rate”) as overtime with prior agreement of the Client Hiring Manager. If the Personnel provides Services during any Professional Working Day for a period which is less than the required minimum of seven and half (7 and ½) hours, the Contractor will only be entitled to charge the Company for the actual hours worked by the Personnel at a pro-rated hourly rate of the relevant Fee Rate (“Prorated Rate”).

Now the rate is ok (not exceptional) for 7.5 hours but awful for 9 would you insist on getting this clause changed or just walk away?

Also Does them stipulating the times in this way put you within IR35?

Steve

I'm not to sure about the implications but it's not something I would like. 1/2 hr for lunch how can you go to the gym and get your food in that amount of time.

[WindyAnna]

I have seen something similar to this before but never seen one quite as bad as this - especially the fact that if you work more hours they won't pay you overtime but if you work less then you have to reduce your daily rate! The cleint gets the best of both worlds - an hourly rate if it suits them (less than a 7.5hr day) and a daily rate if it suits them (more than 7.5 hours up to 9).

I've had a daily rate for years, the "professional working day" clause states whatever is needed to do the job - so in theory I could work 2 hours and charge a day if I had fulfilled my purpose for that day. My daily rate is decent and does compensate well for the times I do have to do 12 hours. I always charge a full day for any time worked at weekends as well.

I'd say if you can get an hourly rate elsewhere then walk away from this, it's taking the p*ss.

Not sure about the IR35 implications - someone once told me that an hourly rate automatically resulted in the contract being caught by IR35 but they could easily have been talking cr*p.

[chasingtheaurora]

My contract doesn't state core hours. I get paid per day whether I'm here 12 hours or 2. Obviously there's a good deal more 12 than 2, regrettably.

[C5/6]

Who's the agency (as if I couldn;t guess!)

Agency is Computer People (Adjilon) who I've been working through quite happily on my previous contract on a hourly rate.

[boxman]

This is total rubbish.

You're opening yourself up to working a 45 hour week and not only that but you bet you won't get agreement to charge overtime from the client. Worse still if you worked say 10 hours a day Mon - Thurs but then decided to leave early on a Friday having worked 5 hours you can only charge two-thirds (5/7.5ths) of a working day for Friday. That's total BS.

Indications of working hours, times for lunch, core time etc are the domain of employment contracts. Get B&C to review the contract and insert a compromise of say 40 hours a week pro-rata so if you get some long days you can b*gger off early later.

Sign up for this rubbish at your peril (and almost a guaranteed inside IR35 IMHO).

[r0bly0ns]

Not sure about the IR35 implications - someone once told me that an hourly rate automatically resulted in the contract being caught by IR35 but they could easily have been talking cr*p.

Personally I would never assume a contract is IR35 just because it's an hourly rate, but would be interested to find out what everyone else thinks....

[daviejones]

45 hours...fook off...no way, stick it up yer jacksi boyo...that's what I would say!!!