Got my first contract / Elan IT

[TestMangler]

But as a reminded to the OP. The contract means nothing in an investigation, it is the working practices that rule. You are not a permie anymore so approach your work with IR35 in mind else you could get in to old habits and fall inside... e.g. You do not take expenses from the client as you did with your old employer. You pay for them and invoice them back. Using their expenses will put you inside IR35 (or a flag anyway) regardless of how tight you contract may be.

Actually NLUK, that is just not correct. In an investigation, the IR go to the client co. You don't discuss ANYTHING with them. That is an over riding term of your insurance policy, should you have one.

In my case, client co. answered EVERY question about working arrangements with 'Please refer to contract', so the contract DOES matter. If the contract didn't matter, why would anyone have them reviewed ?

The courts try to construct a 'notional' contract from the client/agent contract and the agent/supplier contract and it is that 'notional' contract which is judged.

[adubya]

The gig's not at IBM is it ?

[northernladuk]

Actually NLUK, that is just not correct. In an investigation, the IR go to the client co. You don't discuss ANYTHING with them. That is an over riding term of your insurance policy, should you have one.

That seems common sense but are at the mercy of what the client says.

In my case, client co. answered EVERY question about working arrangements with 'Please refer to contract', so the contract DOES matter. If the contract didn't matter, why would anyone have them reviewed ?

Again true, nothing wrong with having it reviewed and having the contract deemed out of IR35 is obviously the first step but means squat if you are going to in to your client and act like a hidden permie, using their expenses, being controlled etc.

The courts try to construct a 'notional' contract from the client/agent contract and the agent/supplier contract and it is that 'notional' contract which is judged.

It sounds like you did well with the client saying that but that doesn't sound like a full investigation either. If you read the Marlen Ltd case at JCB (read it here you will see the working relationship and practices are examined in great detail. HMRC will not have accepted these arguments verbally from the contractor or 'refer to contract'.

A more thorough investigation was carried out and the article always refers to the working practice. It doesn't refer back to his contract once. It goes on about MOO and control again which refer to working practice.

I find it hard to believe based on the Marlen case that it all comes down to picking through paperwork and ignoring how you act on site.

To advise that contract is everything and working practices don't matter I think is wrong. If you get your contract reviewed, but more importantly sort out you work practices you will be covered but don't leave either to luck or chance.

Obviously the bottom line here is you have been through this and I haven't but if the whole IR35 comes down to notional contracts then someone at HMRC really wants taking out and shooting.

[TestMangler]

That seems common sense but are at the mercy of what the client says.



Again true, nothing wrong with having it reviewed and having the contract deemed out of IR35 is obviously the first step but means squat if you are going to in to your client and act like a hidden permie, using their expenses, being controlled etc.



It sounds like you did well with the client saying that but that doesn't sound like a full investigation either. If you read the Marlen Ltd case at JCB (read it here you will see the working relationship and practices are examined in great detail. HMRC will not have accepted these arguments verbally from the contractor or 'refer to contract'.

A more thorough investigation was carried out and the article always refers to the working practice. It doesn't refer back to his contract once. It goes on about MOO and control again which refer to working practice.

I find it hard to believe based on the Marlen case that it all comes down to picking through paperwork and ignoring how you act on site.

To advise that contract is everything and working practices don't matter I think is wrong. If you get your contract reviewed, but more importantly sort out you work practices you will be covered but don't leave either to luck or chance.

Obviously the bottom line here is you have been through this and I haven't but if the whole IR35 comes down to notional contracts then someone at HMRC really wants taking out and shooting.

Agreed, but they are equally important. Could maybe have worded it better

I'm not saying working practices don't count, but they don't count any more than the contract. Any client has the right to answer the questions as they see fit. In my case, client co continually stated that they did not have a contract with Mangler Ltd and any questions about how we worked together would be covered by Mangler Ltd's contract with Agency Inc.

They literally did answer all the HMRC questions with 'refer to contract'. Still took 2 1/2 years for them to give up though

[northernladuk]

Well they did so that is result. Interesting hearing some feedback from someone that has been through it though so thanks for that.

[BolshieBastard]

I've managed to land my first contract so exit from permieland on it's way. Clientco is prepared to wait the month's notice period although I'm hoping to negiotiate a quicker exit by trading accrued leave etc.

The agency who got the gig is Elan, and I'm in the process of reviewing their standard contract. Has anyone had any experience with them regarding any changes that may be required, any "tricks" to watch out for etc?

I'm also in the process of setting up a meeting with SJD to see what their service entails and to assit in company / VAT registration etc. Seems by the comments on various threads they are good at their job, but if anyone has recomendations for an alterative I'd be happy to hear them.

Dont waste your time. Get the contract reviewed professionally by someone like Bauer and Cottril. If you are new to contracting, with respect you wont have a clue what to look for. Plus, a professional contract review will nearly always succeed in getting changes made where you would struggle to convince the agent.

[AussieDigger]

I think from experience Elan are one of the most inflexible when it comes to changing their contracts. They seem to forget that its a contract around the role and whatever goes into 'formation' of the contract (e.g. role description, interview, etc) should form part of the contract. If anything, it makes the contract stronger for all concerned and limits the ability of any party from exiting the contract without a good reason.

One thing that larger organisations like Elan do put into their contracts are clauses around being able to claim 'liquidated damages' from your fees at any time throughout the contract or for a defined initial period. So you could get the scenario where you reach the end of the working month, get terminated, and then they claim all of the months fees as damages (or a part thereof) without you having any legal recourse to challenge that against the scope of the contract. Its a grossly unfair arrangement and any contract breach should be determined by an independent third party, not a party to the contract who actually plays no role in its execution day to day on the ground. 95% of agencies don't' do this and make the contract balanced but the bigger ones seem to want to weight it in their favour and take the reward without the risk. So is it so unfair as for the lowly contractor to then want to be able to strengthen their position so as to reduce the likelihood that risk will come to pass ?

[cojak]

On the other hand my current contract from Elan could have been written by PCG.

No problems with it.