QDOS say Hyphen contract is IR35 fail - anyone managed to get Hyphen to amend?

[Casablanca]

Hi

I asked QDOS to do an IR35 contract review on the Hyphen contract I received (I have not opted-out therefore received what they call their "Opt-In" standard contract). Disappointingly it is a fail. I have send the feedback to my Hyphen contacts requesting they review and address these items since it seems to be slightly shoddy and misleading wording rather than any true intent for it to read as an employment contract. I've not had a failed contract from a QDOS review before so I'm a little surprised. Has anyone else been successful in getting Hyphen to make contract changes?

End client is LBG Group IT. Rate is already lower than I would like but the local market has been very slow, I've had almost 3 months off already and the project itself looks v interesting. So if I can't get the contract changed I'm planning to account for it as inside IR35 and to continue to look for a better contract/rate elsewhere.

[Clare@InTouch]

If you can't get the contract changed it doesn't mean you're inside IR35, it just means you need to concentrate on keeping proof that your working conditions point to you being outside IR35 (if they indeed are). It's not the contract that matters, it's what you do.

[Casablanca]

thanks

Thanks Clare. I will review the points of failure and work out what evidence/records could demonstrate being outside

[TestMangler]

That old trick again. Ask your Hyphen contact for a copy if what your contract would be IF you were to opt out.

You'll find that will pass the QDOS review

Now, why would they do that........

[Casablanca]

that had crossed my mind...

Interesting. So would you choose to opt-out to get a more favourable contract, or insist the other contract mirrored the opted-out one for those clauses? Do you have any experience of getting Hyphen to play ball?

[TestMangler]

Interesting. So would you choose to opt-out to get a more favourable contract, or insist the other contract mirrored the opted-out one for those clauses? Do you have any experience of getting Hyphen to play ball?

I didn't say I would opt out or that you should.

I advised you to ask Hyphen to send you a copy of what the contract would look like IF you opted out.

It's a common trick around several agencies to tell contractors that opting in puts you inside IR35. You just have to set them straight.

NB - Before anyone starts flaming me for the last line above, please note I said 'agencies will tell contractors.....' I didn't say it was true

And to answer your other question, I wouldn't work for Hyphen. Period. You can try getting them to mirror the opt in/opt out contracts but I don't fancy your chances.

[TheFaQQer]

Interesting. So would you choose to opt-out to get a more favourable contract, or insist the other contract mirrored the opted-out one for those clauses?

If I wanted to remain opted in, then I would negotiate with the agency to get the contract changed. If I wanted to opt out, then I'd make sure their opt out contract passed a review. Regardless of what the paper says, I'd also check the reality reflects the wording.

There are some things that you can do opted in which scares agencies - the restriction on going direct is relaxed if you are in, and the agency has to pay you whether they get paid or not. When I argued with one agency a long time back, their main concern was that they had a clause in the upper contract which said that they had to invoice within six weeks of the work being completed or they wouldn't get paid, but if I opted in I could invoice at any time and they would have to pay me.

Do you have any experience of getting Hyphen to play ball?

Never worked with them, but I have argued changes before with other agencies.

If they won't move, then you have a few choices:

• accept the contract and declare yourself inside IR35
• accept the contract, declare yourself outside IR35 and prove that the reality puts you outside
• accept the contract, declare yourself outside IR35 and put the money to one side in case you are ever investigated and lose
• accept the contract, declare yourself outside, and pump the money into a pension so any tax due would be significantly reduced
• walk away from the role

If you end up walking away, make sure the client knows that this is because the agency are being silly rather than anything else.

[portseven]

tcs are into lbg and they are ok with ir35 ammendments, then again its TCS and they are a PITA to go through....

[speling bee]

If I wanted to remain opted in, then I would negotiate with the agency to get the contract changed. If I wanted to opt out, then I'd make sure their opt out contract passed a review. Regardless of what the paper says, I'd also check the reality reflects the wording.

There are some things that you can do opted in which scares agencies - the restriction on going direct is relaxed if you are in, and the agency has to pay you whether they get paid or not. When I argued with one agency a long time back, their main concern was that they had a clause in the upper contract which said that they had to invoice within six weeks of the work being completed or they wouldn't get paid, but if I opted in I could invoice at any time and they would have to pay me.


Never worked with them, but I have argued changes before with other agencies.

If they won't move, then you have a few choices:

• accept the contract and declare yourself inside IR35
• accept the contract, declare yourself outside IR35 and prove that the reality puts you outside
• accept the contract, declare yourself outside IR35 and put the money to one side in case you are ever investigated and lose
• accept the contract, declare yourself outside, and pump the money into a pension so any tax due would be significantly reduced
• walk away from the role

If you end up walking away, make sure the client knows that this is because the agency are being silly rather than anything else.

Or:
[*]accept the opt-out contract, sign the opt-out, withdraw the opt-out an hour before you start the contract and then declare yourself outside IR35 and prove that the reality puts you outside.

Or does that not work? I forget.

[SpontaneousOrder]

I'll ask my brother over the weekend. He runs a big account at Hyphen.
He might be too removed from the coal-face now, but we'll see.