Retainer and IR35

[TheFaQQer]

I was discussing with a friend the other day the prospect of working for a consultancy with a retainer being paid. For example, having a "use it or lose it" contract where the consultancy will use 10 days of time a month. If they use it, then I do / someone does the work, they pay. If they don't, then no-one does the work, they still pay.

Obviously the potential problem here is whether the this would count as mutuality of obligation. I would fully expect that the retainer would not prohibit me from having different clients at the same time. If the retainer was good enough, then I probably wouldn't bother looking for another client, mainly because I wouldn't be bothered - however, I would still have the right to work for other clients if I wanted to.

Thoughts??

[Gonzo]

I was discussing with a friend the other day the prospect of working for a consultancy with a retainer being paid. For example, having a "use it or lose it" contract where the consultancy will use 10 days of time a month. If they use it, then I do / someone does the work, they pay. If they don't, then no-one does the work, they still pay.

Obviously the potential problem here is whether the this would count as mutuality of obligation. I would fully expect that the retainer would not prohibit me from having different clients at the same time. If the retainer was good enough, then I probably wouldn't bother looking for another client, mainly because I wouldn't be bothered - however, I would still have the right to work for other clients if I wanted to.

Thoughts??

I wouldn't have thought that this should be too much of a problem provided that substitution is allowed - the retainer is to retain yourCo's services not you personally, right?

Just my thoughts. I am not an expert in this field!

[northernladuk]

I would say the devil is in the details to be honest. I am sure you could negotiate obligation depending on the rates and clients needs so it's what you can thrash out with them. I would certainly say there would be no assumed obligation but would definitely raise it with them to make sure. It covers them as well I guess so would appreciate it being dealt with I would say. To not deal with this topic could be problematic.

They way the work is called off might affect obligation as well. Is it 2 weeks fixed or is it 10 days a month to be used anytime they see fit etc

Try and gauge the impact of this work on them. If they are desperate for a reliable experienced guy to come in on a very flexible and adhoc timeline I am sure they will be willing to pay good dollah instead of going to market and pulling in new randoms every time. Will also help you work the obligation aspect in your favour as well.

Sounds like a good opportunity this one. If you can do a good job for them, negotiate a good rate AND get some work in between could keep you going fo a long time. Good luck with that.

[TheFaQQer]

Try and gauge the impact of this work on them. If they are desperate for a reliable experienced guy to come in on a very flexible and adhoc timeline I am sure they will be willing to pay good dollah instead of going to market and pulling in new randoms every time. Will also help you work the obligation aspect in your favour as well.

If the scenario comes up, then it's likely to be that they want an experienced person, who they have worked with before, know they can trust, know they will get decent deliverables etc. but they haven't definitely got the work sorted yet - if the work comes off, then they want me to do it and be available. In that case, it would be (for example) a minimum of 10 days consultancy per month.

Sounds like a good opportunity this one. If you can do a good job for them, negotiate a good rate AND get some work in between could keep you going fo a long time. Good luck with that.

Sadly, it's all hypothetical at the moment - I can see that it might happen, but not for a while, and I want to get my head round all the possibilities / implications in case it suddenly comes off.