Virgin Media - Hays IT

[ruth11]

Can't decide on whether to start a new thread or not. Probably should, but don't want to clutter the forum.

Got a gig working for IBM in Warwick, through Hays.

QDOS say HIT20 doc is an IR35 failure due to Substitution Clause and the fact that although the EB can give me 7 days notice, I can't terminate the contract.

Substitution clause states at the end that the Client and the EB can refuse the substitution at their Sole Discretion.
This is apparently not good.

And they say that if the EB can give me notice, then I shoud be able to give notice as well.

Contract has an end date but they say that it will be extended as the project is long term.

Any thoughts? Hays won't change the HIT20, I don't want to use my Ltd Co with a definite non-compliant contract and I also don't want to go umbrella unless I absolutely have to. I do want the contract though.

[Jubber]

Can't decide on whether to start a new thread or not. Probably should, but don't want to clutter the forum.

Got a gig working for IBM in Warwick, through Hays.

QDOS say HIT20 doc is an IR35 failure due to Substitution Clause and the fact that although the EB can give me 7 days notice, I can't terminate the contract.

Substitution clause states at the end that the Client and the EB can refuse the substitution at their Sole Discretion.
This is apparently not good.

And they say that if the EB can give me notice, then I shoud be able to give notice as well.

Contract has an end date but they say that it will be extended as the project is long term.

Any thoughts? Hays won't change the HIT20, I don't want to use my Ltd Co with a definite non-compliant contract and I also don't want to go umbrella unless I absolutely have to. I do want the contract though.

What version do you have.? I have one here (HIT20_08/05) and it says

"The Employment Business may terminate the Assignment forthwith by notice to the Company at any time during the first week from the beginning of the period of the Assignment. Thereafter, the Assignment may be terminated by the Employment Business giving to the Company the required written notice as set out in the Assignment Confirmation Letter (“ACL”)."

What does it say in the Assignment Confirmation Letter (ACL).? You need to see both the contract and the assignment letter. The standard ACL from Hayes will probably include stuff like 'notice' and 'holiday pay' (shriek!!)

Get them to remove all notice from the ACL and other horrors like that.

As for the substitution clause, it says ...

"3.5 The Company shall be able to provide a substitute for the Relevant Consultant where necessary provided always prior written approval is given by the Client and the Employment Business and provided always that the substitute has at least the necessary skill set, qualification and experience to perform the Services and complies with and adheres to the requirements of the Client and the Terms of Assignment. Notwithstanding any substitution, the Company and the Relevant Consultant shall remain responsible for the services provided. The Client and the Employment Business reserve the right to refuse any proposed substitution at their sole discretion."


I would argue that the client has security issues and it is a very niche position that only a properly qualified person can do. There is no way any company is going to allow you to stick your mate in 'onsite' that they have never met and seen for a position described above. If it was fitting a new toilet maybe, but not for secure IT work.

Also - go get the work - get the money in the bank - put the little bit the taxman 'may' demand off you later in a high interest account every week, and enjoy your gig.

J

[ruth11]

What version do you have.? I have one here (HIT20_08/05) and it says
<snip>

Yep, that's the one. I agree with you on the Subs clause. No company is going to let just anyone do it's work, but I think the problem is that the contract states that the Client and/or EB can decide not to agree to the substitution even if they ARE suitable.

The notice period is in the Dummy Schedule (I haven't got one fully filled out yet because I haven't signed the HIT20!). Notice period states:

"The Company cannot terminate this agreement
The Employment Business can terminate this agreement with 7 calendar days notice "

Hays just told me that they aren't going to change anything because HIT20 is standard and Schedule is Standard for IBM.

Will sign the HIT20, get the schedule, get it all checked by B&C along with working practices and go from there I think.

[Jubber]

Dummy Schedule.? Do you mean the Assignment Confirmation Letter.?

[Bluebird]

In the recent IR35 case which was lost, even though the client said that the RoS existed, the Special Commisioner interpretted it differently....

Aside from control, the Special Commissioner was not convinced that there was an unfettered right to substitute, despite confirmations in two letters from client representatives.

Of one of the letters, the SC reflected: “Although the letter did not indicate that the AA would wish to approve the substitute first, it was not to my mind absolutely clear that the writer intended to say that the AA did not regard itself as being entitled to require that it approved the substitution or that it would in practice wish to do so in the relevant period.”

In terms of substitution, he concluded: “The AA did not want any competent tester, it wanted Mr Bessell.”

[ruth11]

Dummy Schedule.? Do you mean the Assignment Confirmation Letter.?

Yes, I think it's the same thing
Doc I was sent is called IBM Dummy Schedule
Has a letter at the beginning and 2 copies of the schedule of work, along with some other bits and pieces.

[ruth11]

In the recent IR35 case which was lost, even though the client said that the RoS existed, the Special Commisioner interpretted it differently....

Aside from control, the Special Commissioner was not convinced that there was an unfettered right to substitute, despite confirmations in two letters from client representatives.

Of one of the letters, the SC reflected: “Although the letter did not indicate that the AA would wish to approve the substitute first, it was not to my mind absolutely clear that the writer intended to say that the AA did not regard itself as being entitled to require that it approved the substitution or that it would in practice wish to do so in the relevant period.”

In terms of substitution, he concluded: “The AA did not want any competent tester, it wanted Mr Bessell.”

Yes, I read that this morning. It's what's slightly worrying me to be honest.

[Bluebird]

Just had a copy of the Hays T&C - it's the:

Terms of Assignment of Consultants Via a Limited Company Contractor (HIT20_08/05)

Can anybody give me the heads up on which clauses need to be changed ?

Ta.

[Jubber]

I'm not entirely convinced that in the above quoted case Mr Bessell was properly represented. My personal opinion is that he should have spent a few hundred on a good barrister.

Maybe just go with your gut feeling and run your affairs accordingly.

I had a PAYE inspection a few years ago and I sailed it, so perhaps I'm not as fearful as some, but with so much uncertainty in the IR35 area, what else is there to do.? Good luck with the gig anyway, whatever happens it will put a roof over your head and keep you in Rolos.

J

[dmini]

If it is the standard one B&C should mark it as a borderline pass - without amendment. You may get Hays to amend the schedule or whatever its called- but don't be surprised if they won't - they wouldnt for me - despite telling me they would before I involved B&C. "IBM is a new account - cannot change stuff"