Hays and changing contract

**NotAllThere** · 6 September 2011, 18:02

Don't start work until the contract is agreed. You cannot back-date changes to the contract. Your best bet is renegotiate when it comes to renewal.

**wlishy** · 6 September 2011, 18:04

thanks for you reply He has already been working there since the end of January with one 3 month extension. Another extension is due on 10 October. We will see if they will change the contract then.

**TestMangler** · 6 September 2011, 18:21

Originally posted by wlishy View Post

My husband is a contractor through Hays IT. We have had his contract reviewed through Abbey Tax. It has come back saying that his work is outside IR35 but his contract is inside IR35. They have recommended some things to be added or ammended to the contract.
Has anyone had any success with getting Hays to do this?
Also if they will change it can the date be backdated. he started work originally in Jan this year.
I have done a search but all the posts seem to be from 2008 to early 2010. Thanks in advance for any help. We are going to contact Hays tomorrow but I wondered if anyone had any success.

I managed it once with a Hays/HBOS contract, but it was hard work and was done through a contract specialist.

Depends a lot on who the client is.

**wlishy** · 7 September 2011, 06:33

thanks for your advice. We have been through Abbey Tax who are being very helpful so fingers crossed.

**Wobblyheed** · 7 September 2011, 08:02

If his working practices are outside IR35 I wouldn't bother personally, especially if Abbeytax are charging you for this.

**TestMangler** · 7 September 2011, 08:55

Originally posted by Wobblyheed View Post

If his working practices are outside IR35 I wouldn't bother personally, especially if Abbeytax are charging you for this.

It depends on the individual HAYS contract and who it's with. If it's with Lloyds, for example, and is the standard HAYS - HBOS/Lloyds contract (Ref HIT/25) then I personally know two people (plus me) whom have won IR35 cases while using it.

Hays are generally difficult to deal with on these things, especially if it's a big client, but having someone deal with it on your behalf helps.

**wlishy** · 7 September 2011, 13:02

Abbeytax charged to review the original contract but they will look at it and answer questions without charging while we try and get it changed. The agent has said if we let him know what changes he will contact the compliance team but it is unlikely they will change it

we are now in the process of letting them know what changes.

I thought the contract was the first thing looked by HMRC and then the working practices. We are keeping lots of records of the differences between employees and contractors such as bonuses, flexi time etc (due dilligence) but I understood if the contract is caught by IR35 it did not matter if you were working outside IR35. HMRC have got you.

**malvolio** · 7 September 2011, 14:07

Originally posted by wlishy View Post

I understood if the contract is caught by IR35 it did not matter if you were working outside IR35. HMRC have got you.

No. Since Dragonfly and a couple of more recent cases, the courts are looking at the totality of the arrangement and only referring to the contractual detail if there is a clear ambiguity in the intent of the parties. There are also indications that the judges are looking at the in business indicators a lot more carefully than they used to. It is an evolving landscape.

Also do not underestimate the work of OTS and the IR35 Forum in highlighting the inherent stupidities of IR35 in practice; that is beginning to sink in even before any absolute conclusions have been made.

If the working practices are outside IR35 and agreed to be so by both sides, it would be a brave judge who said the conditions of the contract will over-rule them. Contracts are for resolving disputes, ultimately, nothing else.

**northernladuk** · 7 September 2011, 15:10

If you look at the Marlen Ltd and JCB review recently the contract never gets mentioned but there is analysis of actual working examples. Although this is just an overview of the investigation it does show that the actual situation is taken very much in to account as well.

IR35 - Impotent HMRC Arguments

Hays and changing contract