Advice Please

[leegtr]

Northernladuk.

My contract is exactly as you would expect when providing services etc, so yes there is substitution because they are contracting my company for services not employing me so I could easily send a guy to replace me. Just because my question is simple it does not mean I am.

The schedule lists the project my company is contracted to work on and also the tasks required for that project. There is a clause that allows the 2 parties to discuss additional projects as long as the work entailed does not fall outside of the tasks required on the original project.

The error I have made (me know one else) is having this vague clause present as it works well in practice but just muddies the water and then verbally accepting something that seemed reasonable but has turned out not to me (both my errors and not suggesting they are anyone else's)

I am

Thanks taita if that is the stance from a legal point off view then that answers the question so I will wait for confirmation from the legal guys

[speling bee]

Northernladuk.

My contract is exactly as you would expect when providing services etc, so yes there is substitution because they are contracting my company for services not employing me so I could easily send a guy to replace me. Just because my question is simple it does not mean I am.

The schedule lists the project my company is contracted to work on and also the tasks required for that project. There is a clause that allows the 2 parties to discuss additional projects as long as the work entailed does not fall outside of the tasks required on the original project.

The error I have made (me know one else) is having this vague clause present as it works well in practice but just muddies the water and then verbally accepting something that seemed reasonable but has turned out not to me (both my errors and not suggesting they are anyone else's)

I am

Thanks taita if that is the stance from a legal point off view then that answers the question so I will wait for confirmation from the legal guys

NLUK likes to assume everyone is as simple as he is.

How about (if they don't agree amicably for you to leave): send an email saying that you verbally agreed to work for a period of not more than six weeks on deliverables xyz in addition to the deliverables in the written schedule. YourCo will now only be working on the deliverables in the written schedule.

See how they responsd.

[leegtr]

Contreras, thanks for the reply.

Was the contract an IR35 review PASS even with indefinite notice period? - I have been advised so but by your tone I will keep that in mind in future (although given this issue I will not being leaving it open ended again regardless)

You only work with a defined schedule - this is good. - Yes this is obviously a key item as I am not employed by the client so if they ask me to sweep the floor it is not something I intend to do as that is for their employees

The client offered you additional work, detailed on a new schedule, which you signed, or not? - This is my mistake it was verbal acceptance on my behalf and is still within the frame work of the schedule but the best explanation I can think of is as follows:- My company is engaged to move a sack of spuds into another field and my company has an order / contract for this. On arriving at the field the client asks me is it ok to move a sack of oranges as well, I verbally reply yes as I am here that is fine as long as the same hourly rate applies. Now when I get to the field there is 10 bags of oranges. This is the stage I am at with my current contract now! and in my eyes I can fully refuse to do this and just move the spuds as contracted but if the client (which they will) says move them all as I have no one else to do them I can say"er no" that would breach my contract so we either revert to the bag of spuds or my company will cancel the complete contract on good grounds.

Could you have declined the new work and quit the contract, seeing as the original schedule was now out of play? - I could have declined the new work but would not be able to cancel the contract if they say ok just do the original work then as there would be no breach

I fail to see the breach of contract, unless you felt obliged to accept work that you weren't originally taken on for? - I am not obliged to accept any additional work as my company (me) chooses what I do when I do it not my client. - Any breach of contract only comes when the client says to my company "you have to do it within the original contract" at which stage it is a breach. I really wish I had never mentioned breach of contract as it has not occurred yet but it will do believe me. In reality I am looking to terminate prior to contract breach or prior to reverting back to original contract with a substitute.

Btw, not necessarily expecting answers here. But I do hope you can get QDOS to advise on your working practices as well, just to be sure. They have reviewed in full and I am ok but I have been on a mobile device all day and am typing first thing that enters my head. The reality is a fairly simple question has been lost in a lot of my waffle

Oh, and you're employed by your company, which in turn is engaged by the client. - I think I mentioned employed by my company, which in turn is contracted by the client (being newer to this than most is the term engaged / contracted that critical in the above?

[leegtr]

I really don't think there will be an issue bee but to be honest I just like to find out as much as possible and I was interested why the contract has all the termination clauses and points to a notice period within the contract that is not present. It then got me wondering if contract law has a same system as employment law in which a "reasonable" period is applied when not present, which is based on years worked etc.

Already been very worthwhile as I can remove some of the grey areas on my next assignment.

[leegtr]

Well had a good chat with the QDOS guys who called my back after my email yesterday.

As the contract was supplied by me to the client and they signed it the grey area has effectively come from me so generally law would be against the person who created the grey area, which seems to make sense.

As I created the grey area it is most likely that the law would say I had to complete the contract to the end date although even the legal team suggested it does not always work like that so they could only advise the most likely outcome.

Anyway that makes the choice easy now as I will go next week and negotiate a notice period and if the say no I will inform them my company is assigning me to another task but they will be receiving a new guy to complete the contact under substitution clause

[northernladuk]

Anyway that makes the choice easy now as I will go next week and negotiate a notice period and if the say no I will inform them my company is assigning me to another task but they will be receiving a new guy to complete the contact under substitution clause

Good luck with the sub clause. If they won't agree a negotiate a termination you will have your work cut out to sub...

That aside. You won't have any trouble negotiating an exit. As I said before clients don't want contractors there that don't want to be so is in their best interests.

Did you speak to QDOS about your extra work situation. From your example your schedule sounds pretty flaky. It should say exactly what you are doing i.e. what work on what project. If your schedule says PM work for your client then that sounds more like an employment contract than a work schedule.

[Contreras]

This is my mistake it was verbal acceptance on my behalf and is still within the frame work of the schedule but the best explanation I can think of is as follows:- My company is engaged to move a sack of spuds into another field and my company has an order / contract for this. On arriving at the field the client asks me is it ok to move a sack of oranges as well, I verbally reply yes as I am here that is fine as long as the same hourly rate applies. Now when I get to the field there is 10 bags of oranges. This is the stage I am at with my current contract now! and in my eyes I can fully refuse to do this and just move the spuds as contracted but if the client (which they will) says move them all as I have no one else to do them I can say"er no" that would breach my contract so we either revert to the bag of spuds or my company will cancel the complete contract on good grounds.

I could have declined the new work but would not be able to cancel the contract if they say ok just do the original work then as there would be no breach

Not a breach of contract at all. It's simply "outside the scope of the agreed schedule".

The analogy is poor, IMHO. Based on what you have said the two projects sound distinctly different, UK-based vs. off-shore. It's more like you were asked to move a sack of different fruit in a different field on a different farm.

The fact you went ahead and complied, and continued for some time, working outside of what was formally agreed, HMRC will say, is because you have become "part and parcel" of the organisation.

That's not what you want to hear, I'm sure. In your opinion that's not how it was, but what do you have to point to? An email, perhaps? This is classic IR35 fodder.

It seems you don't actually want to return to the original schedule as you have richer pickings elsewhere. In view of that maybe it would be better simply to serve 'reasonable' notice and focus on bringing tasks to a natural conclusion as best you can and an amicable handover of the remaining work.

[leegtr]

No my schedule defines a project name and a schedule of tasks I have to execute on that project (list of 10 clearly defined tasks)

The 1st mistake I have made is adding a clause saying the another other projects will be reviewed by the client and service provider on an as required basis to determine if the service provider can undertake these as long as the tasks fall within the stated schedule tasks. The 2nd mistake was saying yes to another project on the back of dud client information, but given I have found the required scope to be different to my existing schedule and different to the verbal agreement my company is within its rights to not do this.

QDOS are more than happy with the schedule and the way I work but I have made 3 errors in my opinion. the 2 above and the no termination period in the contract.

The reality is a subbing another PM is never really a viable option but I can use it as an example to show what my company can do if it believes that is the correct course of action although the client can disagree with any sub PM all day long so the reality is you are correct.

[northernladuk]

No my schedule defines a project name and a schedule of tasks I have to execute on that project (list of 10 clearly defined tasks)

The 1st mistake I have made is adding a clause saying the another other projects will be reviewed by the client and service provider on an as required basis to determine if the service provider can undertake these as long as the tasks fall within the stated schedule tasks. The 2nd mistake was saying yes to another project on the back of dud client information, but given I have found the required scope to be different to my existing schedule and different to the verbal agreement my company is within its rights to not do this.

QDOS are more than happy with the schedule and the way I work but I have made 3 errors in my opinion. the 2 above and the no termination period in the contract.

.

I am a little surprised QDOS didn't pick that up but in their mind it could be acceptable if done properly. The problem is you didn't do it properly. You were asked to take another piece of work on in parallel to your own which is D&C if I have ever seen it.

tasks fall within the stated schedule tasks

If you have a clearly defined schedule for project A how on earth can anything else i.e. project B fall in to it. It can if your schedule is 'PM anything the clients asks for' which is a fail. Your schedule should be tight enough that you can't be accused of taking on other work for the client and be seen as a disguised employee by HMRC. In this case you clearly can. Complete **** up.

You should have agreed a completely new schedule with very precise tasks that cannot be ported to other work. Even then I would argue HMRC are will see straight through that. Creating paperwork to suit working practices is pretty much a fail. They will speak to your client and he will say 'Yeah we asked him to do this cause we were short' and no amount of paperwork or contracts will save you.

The reality is a subbing another PM is never really a viable option but I can use it as an example to show what my company can do if it believes that is the correct course of action although the client can disagree with any sub PM all day long so the reality is you are correct

The situation you are describing is called a sham clause and has been tested and failed in court. If the client refuses it or there is any indication the client will not accept then again the working practices completely trump the paperwork and you don't have a leg to stand on...

Working practices always trump the contract. If you had it right from the off the contract should state the exact intention of both parties. What is the point of having a contract with a clause in it that both you know won't stick? It's pointless.

[TheFaQQer]

The reality is a subbing another PM is never really a viable option but I can use it as an example to show what my company can do if it believes that is the correct course of action although the client can disagree with any sub PM all day long so the reality is you are correct.

If they refuse to accept a substitute, and the substitution clause is worded correctly, then you would have a case for them breaching the contract. The ability to send a substitute is a fundamental part of the contract for services between the client and the company - if you have an unfettered right of substitution and they refuse to allow that, then they are in serious breach which would give you the right to terminate (and potentially sue for damages).