Interesting client/agency contradiction

[mondeoman]

What's the risk for a contractor, post 6th Apr, of ending up being in a contract with this kind of discrepancies?

I mean

1) the contract between client and agency clearly says "inside"
2) the contract between the agency and the contractor says "outside" (same as the opening on whatever website)
3) the contractor accept the job and signs the "outside" agency's contract
4) the contractor does not know anything about the client <-> agency contract

An investigation comes: what would happen next?

All depends what is going to happen "on the ground" and the real interaction between the client and contractor. The agency has no influence on that at all.

[Andy Hallett]

The few payer (agency) has the responsibility to make the correct payment, and the liability should they not do this correctly.

[jamesbrown]

If they were spectacularly stupid enough (client) to issue an outside SDS when the terms of the client <-> agency contract were clearly inside then the issue sits with the client.

Fee Payer, actually. But there might be a case for lack of reasonable care.

[GhostofTarbera]

My client is a major international bank, let's call it BigBank. MyCo is engaged via their in-house sourcing partner, I'll call them ResourceCo.

BigBank sent out a document to all managers explaining how they should go through the SDS for their staff using CEST and some of the details are very interesting when juxtaposed with the ResourceCo contract. Bear in mind this contract has just been revised to fit in with the post-April legislation.

Response below are paraphrased to protect the guilty


CEST question:
Has the worker ever sent a substitute to do the work? Do you have the right to reject a substitute?

BigBank guidance doc:
No, definitely no substitutes

ResourceCo contract:
Yes, the contractor can provide a substitute




CEST question:
If your organisation was not happy with the work, would the worker have to put it right?

BigBank guidance doc:
They certainly wouldn't have to do it unpaid (i.e. answers "Yes, unpaid and they would have extra costs that your organization would not pay for" and "Yes, unpaid but their only cost would be losing the opportunity to do other work" don't apply)

ResourceCo contract:
Yes they would, at their own cost and in their own time



I'm leaving in a few weeks anyway, so it really doesn't affect me, but I find it depressingly unsurprising that the resourcing company, who should know exactly what the client expects from contract staff, blindly ignores that and puts what it thinks a contractor wants to see in their contract, which has been altered for use post-April. Is it any wonder some contractors think they're OK for IR35 when this kind of garbage is still going on even with all the palaver about the new off-payroll rules?

Mumble, grumble, hmmmph

Not really that interesting


Sent from my iPhone using Contractor UK Forum

[SciaticaSucks]

I find it odd that this hasn't sparked more of a debate. Before I started with my current client I understandably had no visibility of the agency <> client contract and I had no idea of the working practices. The only thing I had to go on with regards to accepting the role was the contract between the agency and my company. This contract goes out of it's way to emphasise the outside IR35 characteristics of the contract and having worked at the client for a period of time I have not seen any working practices that contradict this.

However, I now find that the SDS issued by the client is the polar opposite of what I have been led to believe. The client states that the outside IR35 characteristics are between me and the agency and they are not beholden to them.

I now find myself in the situation where the agency states that under no circumstances am I an employee of the agency or the client and that I am operating as if self-employed, while the client is stating that under no circumstances am I operating as self-employed and instead I am operating as employed. Surely, they both can't be right!

[cojak]

I now find myself in the situation where the agency states that under no circumstances am I an employee of the agency or the client and that I am operating as if self-employed, while the client is stating that under no circumstances am I operating as self-employed and instead I am operating as employed. Surely, they both can't be right!

You are correct, they can't both be right - it is the client's opinion that counts. The agency will just say anything to get you to sign the contract.

[SciaticaSucks]

You are correct, they can't both be right - it is the client's opinion that counts. The agency will just say anything to get you to sign the contract.

So when pitching for the role, the project manager asks if I have any questions, I should whip out the agency contract and go through each bullet point with them to confirm what is correct?

At the point of engagement my company has no knowledge of the working practices. It is a moot point as from 6 April any role will be declared inside or outside before I go for it, so I can just choose to avoid the inside roles.

[cojak]

So when pitching for the role, the project manager asks if I have any questions, I should whip out the agency contract and go through each bullet point with them to confirm what is correct?

At the point of engagement my company has no knowledge of the working practices. It is a moot point as from 6 April any role will be declared inside or outside before I go for it, so I can just choose to avoid the inside roles.

The Project Manager could agree but they won’t have the authority to make that decision.

You need that decision to be made in writing from the HR department and agency.

So Yes, you can choose to avoid inside roles by walking away from the contract.

Good luck finding that outside role.

[SciaticaSucks]

The Project Manager could agree but they won’t have the authority to make that decision.

You need that decision to be made in writing from the HR department and agency.

So Yes, you can choose to avoid inside roles by walking away from the contract.

Good luck finding that outside role.

I know . . . . we could call that a contract. I would argue that the contract should be between my company and the client. If the client choose to outsource recruitment, on-boarding, and payroll to a third party then that is their business but the contract should be between the client and me. At least that way we would not have this crazy situation where the only means I have of knowing the working practices at the start of an engagement is completely wrong.

Thank you for your response and for the good luck message. A colleague of mine starts a new outside role next week and I am pitching for some outside IR35 work this evening through someone I know so there is some hope

Thank you