Any IR35 implications?

[SpontaneousOrder]

Hey.
I'm not bothered too much about the practicalities of this clause as it's only for a small extension for now, but is this an IR35 hint?

I can't remember if it was mentioned in the original contract (i don't recall it) but i've always had no intention of ever asking for permission to go on holiday (negotiating a convenient time is a different matter). It does seem like a perfectly reasonable thing for a client to ask for though, although it does seem a little contradictory in a contract with a RoS.

3) Unless otherwise agreed in writing by the parties, the Contractor shall ensure that Personnel does not take further periods of annual leave during the Assignment in addition to the leave entitlement agreed in connection with a particular Assignment. The Contractor shall ensure that Personnel obtains the prior written agreement from an authorised representative of the Client in respect of any period of absence from an Assignment.

Ta.

[malvolio]

Yep. Clear direction and control. Exit your IR35 defence. Your call but I would see that as a deal breaker.

[jamesbrown]

Although you only need one of lack of D&C, MoO and a RoS in theory, a lack of D&C is very important and this is a clear example of D&C. Absent an actual substitution, I wouldn't feel at all comfortable working a contract that didn't have a very clear lack of D&C in practice (backed-up by the contract).

[SueEllen]

That is a silly clause likely put in by the agency to ensure they don't lose revenue.

Contractors don't have annual or any other kind of leave. You are either available or not, so the clause is meaningless.

Talk to the client and confirm they don't have a problem with you taking a half day here or there for something like a dental appointment, or a full day when you can only get a GP's appointment at some stupid time. Then get the clause removed by pointing this out.

If the agency doesn't want you to go on holiday the contract needs to be worded differently. However don't offer them the wording.

[SpontaneousOrder]

Ok, thanks guys.
The extension is only a month (there was already authorised budget left over including time i've already had off), but I am 99.9% certain the client won't have a problem so I'll get it removed - Especially as it's likely i'll get a longer extension after that assuming the guys holding the purse strings are feeling flush.

The agency sent me all the docs to read, but only asked me to sign the schedule this time around. Is this typical for extensions? And if I sign an amended addendum in addition to the schedule then should that be sufficient given there's an email chain indicating that I've also signed new Ts & Cs ? (i.e. if people only normally sign the schedule then I don't want my new Ts & Cs to vanish into the ether because I didn't follow some protocol)



The next proper contract I get i'll have reviewed - this one was my first and went from interview to first day of work in 3 days (which i suspect was the agent spinning stories at both ends seeing as they weren't really ready for me).

[malvolio]

The schedule describes the piece of work to be done within the overall contractual agreement, so an extension does only need a new schedule under the same contract unless, of course, some fundamental Ts&Cs have to change. But as I said, my reaction would be to tell the agency to fold that clause until it's all corners and insert it somewhere dark. If the client wants to keep you, tell the agency you want to keep the original agreement, with the only acceptable change to the previous schedule being a new timeframe.

And if they argue ask the client to explain it to them in words they will understand.

[SpontaneousOrder]

The schedule describes the piece of work to be done within the overall contractual agreement, so an extension does only need a new schedule under the same contract unless, of course, some fundamental Ts&Cs have to change. But as I said, my reaction would be to tell the agency to fold that clause until it's all corners and insert it somewhere dark. If the client wants to keep you, tell the agency you want to keep the original agreement, with the only acceptable change to the previous schedule being a new timeframe.

And if they argue ask the client to explain it to them in words they will understand.

Ah sorry, i forgot to say - I dug out my old contract and it existed in that too, so it feels a bit awkward asking for it to change now. I know my 'handler' at clientCo won't mind, and it's a few weeks yet until the old schedule expires, so unless HR have an issue It should be ok. Plus it's an opportunity to make it clear that I won't accept it should there be a bigger extension after this surplus budget is used up, when the stakes will be higher (I.e. i don't want to disappear to a beach for a fortnight before a fresh 6 month stint only to return to find that the clause removal is a showstopper).

[northernladuk]

Ah sorry, i forgot to say - I dug out my old contract and it existed in that too, so it feels a bit awkward asking for it to change now. I know my 'handler' at clientCo won't mind, and it's a few weeks yet until the old schedule expires, so unless HR have an issue It should be ok. Plus it's an opportunity to make it clear that I won't accept it should there be a bigger extension after this surplus budget is used up, when the stakes will be higher (I.e. i don't want to disappear to a beach for a fortnight before a fresh 6 month stint only to return to find that the clause removal is a showstopper).

Did finding this in your main contract not make your blood run cold? It means you have little to no defence to an IR35 investigation now? You said you weren't that bothered about it in a 1 month extension but that isn't the case now? Your up tulip creek without a paddle.

3 days is more than enough to get it reviewed and look what it is going to cost you if you get caught. Don't start a contract until it has been reviewed even if it means starting a day or two later.

[SueEllen]

I've had contracts reviewed within 24 hours.

So even if the agent gives you the contract on Friday afternoon delaying your start until Tuesday or Wednesday will not p*ss the client off.

Some agencies try the trick of giving the contract as late as possible on Friday to try and force you just to accept it.

[SpontaneousOrder]

Did finding this in your main contract not make your blood run cold? It means you have little to no defence to an IR35 investigation now? You said you weren't that bothered about it in a 1 month extension but that isn't the case now? Your up tulip creek without a paddle.

3 days is more than enough to get it reviewed and look what it is going to cost you if you get caught. Don't start a contract until it has been reviewed even if it means starting a day or two later.

At least it'll only be 5 months caught inside if it came to it? No doubt a proper ball ache though.