What's changed - FAQ

[eek]

Right I'm going to call what's there a first draft.

Any comments on the more recent parts (not pensions please)..

[teapot418]

Agency worker Regulations

Assuming you did not opt out when you signed the original contract you may be able to use the Agency Worker Regulations to ensure that after 12 weeks you get the same pay and benefits as permanent members of staff. While its likely that pushing for equal pay may not get you anywhere benefits including paid holidays may be worth pursuing.

If you did opt out of Agency worker regulations you may still be able to pursue the above action once you've proven that the opt out was administrated incorrectly - Opt outs need to be obtained prior to you being introduced to the client so any opt out issued after you have been interviewed by the client is probably invalid....

I think you're confused about opt out - the "opt out" that is often debated is of the Agency Conduct Regulations, not AWR.

It's generally accepted that AWR do not apply as we are not under the SDC of the client, and quite often the agency will ask us, as director of ourCo, to confirm that, but that is not the same thing as the opt out.

[eek]

I think you're confused about opt out - the "opt out" that is often debated is of the Agency Conduct Regulations, not AWR.

It's generally accepted that AWR do not apply as we are not under the SDC of the client, and quite often the agency will ask us, as director of ourCo, to confirm that, but that is not the same thing as the opt out.

Yep its not right. I need to have another look at it.

Got confused between opting out and the limited company get out that the Agency Regulations also provide.

[Andy Hallett]

I think you're confused about opt out - the "opt out" that is often debated is of the Agency Conduct Regulations, not AWR.

It's generally accepted that AWR do not apply as we are not under the SDC of the client, and quite often the agency will ask us, as director of ourCo, to confirm that, but that is not the same thing as the opt out.

Correct, two different pieces of legislation.

[yorkshirespud]

Payment practicalities and incompatibility with Contract Law

Hi all,

I take a practical view of the possible effects of the April 2017 Public Sector deemed IR35, i.e. getting paid, and the incompatibility with contract law as far as I can see.

Could someone explain to me:

1. Public sector organisation decides that all contractors are IR35, informs Agency, who then:
2. From April 2017 forwards, suddenly starts paying a different (smaller) amount/effective rate post-deductions.

Why would my own limited company at this point, state that a signed contract and schedule with a specified day rate exists between Agency company and my limited company, and then:

3. Clear commercial breach of contract between Agency and LtdCo - see you in court.

Why would I not immediately just instigate a small claims court action on the agency from my LtdCo - pay up?

(Answer, that's exactly what I will do - just asking for opinions).

Regards

[MeMeMe1966]

Hi, I'm new to posting to this forum so apologies if this doesn't post correctly.

Hi all,

I take a practical view of the possible effects of the April 2017 Public Sector deemed IR35, i.e. getting paid, and the incompatibility with contract law as far as I can see.

Could someone explain to me:

1. Public sector organisation decides that all contractors are IR35, informs Agency, who then:
2. From April 2017 forwards, suddenly starts paying a different (smaller) amount/effective rate post-deductions.

Why would my own limited company at this point, state that a signed contract and schedule with a specified day rate exists between Agency company and my limited company, and then:

3. Clear commercial breach of contract between Agency and LtdCo - see you in court.

Why would I not immediately just instigate a small claims court action on the agency from my LtdCo - pay up?

(Answer, that's exactly what I will do - just asking for opinions).

Regards

So I think that you would easily be able to get the employers NI back (if the contract doesn't specifically state that they can with-hold it from your agreed daily rate) as the draft legislation makes it clear that it is the fee payers responsibility. As for the income tax and employees NI however I'm not sure? The legal concept of equity in contract law (something about coming to the law with clean hand) says something about a contract cannot be enforced that requires one party to do something illegal. Therefore the agency could claim that not withholding tax and NI when the legislation requires them to is illegal and they cannot be forced to do so by the contract.

[runandbecome]

Hi all,

I take a practical view of the possible effects of the April 2017 Public Sector deemed IR35, i.e. getting paid, and the incompatibility with contract law as far as I can see.

Could someone explain to me:

1. Public sector organisation decides that all contractors are IR35, informs Agency, who then:
2. From April 2017 forwards, suddenly starts paying a different (smaller) amount/effective rate post-deductions.

Why would my own limited company at this point, state that a signed contract and schedule with a specified day rate exists between Agency company and my limited company, and then:

3. Clear commercial breach of contract between Agency and LtdCo - see you in court.

Why would I not immediately just instigate a small claims court action on the agency from my LtdCo - pay up?

(Answer, that's exactly what I will do - just asking for opinions).

Regards

Was wondering this myself you've signed a contract for so many months and a 3rd party has cut that contract. Can we take hmrc to court for interfering with our contract?

[DaveB]

Was wondering this myself you've signed a contract for so many months and a 3rd party has cut that contract. Can we take hmrc to court for interfering with our contract?

Nope, the agency will terminate the existing contract, citing whatever grounds they see fit, and issue a new one with the revised payment conditions. If you object to that you won't be given a new contract to sign. The very fact that the law has changed will probably be cause enough for them to justify revising the contacts to keep them legal.

There is no getting around this, there will be no sneaky get outs or legal recourse. If you don't want to be paying full PAYE and NI come April 5th you need to be getting your notice in now and telling your Public Sector clients exactly why you are leaving.

[eek]

Nope, the agency will terminate the existing contract, citing whatever grounds they see fit, and issue a new one with the revised payment conditions. If you object to that you won't be given a new contract to sign. The very fact that the law has changed will probably be cause enough for them to justify revising the contacts to keep them legal.

There is no getting around this, there will be no sneaky get outs or legal recourse. If you don't want to be paying full PAYE and NI come April 5th you need to be getting your notice in now and telling your Public Sector clients exactly why you are leaving.

It also depends on the terms of your contract. As I commented earlier today someone elsewhere had a contract that allowed tax to be deducted from payments if the agency was required to do so...

[eek]

In other news the NI regulation changes are now up at https://www.gov.uk/government/public...gulations-2017

That's not really of interest:-

Page 2 of this however https://www.gov.uk/government/upload...PDF_file_3.pdf states that otherwise the person would be treated as an employee (sorry I haven't posted a quote its a pdf image file rather than text). If anyone was going for rights via a tribunal I suspect it is employee rights you are aiming for not worker rights.