Does SDS change contract ?

[SueEllen]

As an off-topic aside, I'd be interested to know if the client ever sees the contract between the agency and the worker.

Surely the client needs to be aware of what's in it, especially around things like substitution.

The agent is suppose to explain to the client why particular clauses need to be in their contract with them and then copy those specific clauses from the contact with the client into the contractor's contact. So this covers things like substitution.

I've had my reviewers catch out a couple of agencies in the past as agents don't expect people to read and understand contract clauses. I've been directed to ask the agency to reissues the contract with the full clauses as certain clauses seemed to have bits missing. (Oddly it wasn't the substitution clause it was things like notice, data processing and third party rights.)

[malvolio]

FTFY

That's a NotFTFY, sorry. If the hiring model worked that way we would want it to, HMRC wouldn't have a case to answer...

[Lance]

The whole hiring model for contractors is badly broken.

Hold my beer.

FTFY

[jamesbrown]

But the whole point is using an agency is that they find the best person to fill your requirement for you. How that person is engaged by the agency is irrelevant; indeed most companies have no idea what the relationship actually is. Look at any decent agency website and they are selling "their" resources when they are nothing of the sort. That the agency is merely a broker of independent suppliers is ignored, since that is not such an attractive USP. Also remember that in many cases the best agents only work with the clients, leaving the workers in the hands of the juniors.

The whole hiring model for contractors is badly broken, but nobody is going to fix it.

I'm not sure we're saying anything different, but nice rant.

[malvolio]

Oh, I see. I guess the client has more leverage with policing the lower contract than the contractor with the higher one, but I wouldn't expect them to routinely see this. What matters to them is the higher contract because that is legally enforceable. They are not party to the lower contract.

But the whole point is using an agency is that they find the best person to fill your requirement for you. How that person is engaged by the agency is irrelevant; indeed most companies have no idea what the relationship actually is. Look at any decent agency website and they are selling "their" resources when they are nothing of the sort. That the agency is merely a broker of independent suppliers is ignored, since that is not such an attractive USP. Also remember that in many cases the best agents only work with the clients, leaving the workers in the hands of the juniors.

The whole hiring model for contractors is badly broken, but nobody is going to fix it.

[jamesbrown]

Sorry I wasn't being all that clear. I was thinking more generally (hence why I said it was an off-topic aside) rather than directly in relation to an SDS

Oh, I see. I guess the client has more leverage with policing the lower contract than the contractor with the higher one, but I wouldn't expect them to routinely see this. What matters to them is the higher contract because that is legally enforceable. They are not party to the lower contract.

[ladymuck]

Not really. Although the SDS won't go into great detail, it's supposed to be a determination made in relation to IR35 status so it should look through any intermediaries and focus on the relationship between the end client and the contractor as a natural person to see whether that relationship looks like one of employment. For example, if the lower contract had a strong RoS that wasn't reflected in the higher contract, then the RoS would be a sham (or, rather, a commercial contract issue for the contractor/agency when the lower contract isn't respected, but of no value w/r to IR35 status).

Sorry I wasn't being all that clear. I was thinking more generally (hence why I said it was an off-topic aside) rather than directly in relation to an SDS

[jamesbrown]

Does the SDS effectively become a sort of modification to my overall contract and terms and conditions ?

No. The contract will contain specific clauses about contract variations or modifications. No party can unilaterally change the contract, but a party may breach the contract and find remedies invoked upon them. At the time the contract is actually breached, you could try to pursue that, but you probably won't get very far and, in any case, that is not a likely scenario. In all likelihood, you will find that the old contract is terminated and a new one issued that does reflect the SDS, which you can then obviously refuse.

[jamesbrown]

Surely the client needs to be aware of what's in it, especially around things like substitution.

Not really. Although the SDS won't go into great detail, it's supposed to be a determination made in relation to IR35 status so it should look through any intermediaries and focus on the relationship between the end client and the contractor as a natural person to see whether that relationship looks like one of employment. For example, if the lower contract had a strong RoS that wasn't reflected in the higher contract, then the RoS would be a sham (or, rather, a commercial contract issue for the contractor/agency when the lower contract isn't respected, but of no value w/r to IR35 status).

[ladymuck]

As an off-topic aside, I'd be interested to know if the client ever sees the contract between the agency and the worker.

Surely the client needs to be aware of what's in it, especially around things like substitution.

[Lance]

If the SDS redefines what you believe you existing role to be you have two options, in reality - resign (or not renew) your current contract or accept you were inside IR35 all along. Which you choose rather depends on where your next income would come from.

Either way, the client knows what they want and expect, so getting them to change their mind is probably futile. Knowing how agencies work, what's in your contract probably doesn't really align to the client's expectations and never has.

in many cases it might fit their expectations but not their risk appetite.

[malvolio]

If the SDS redefines what you believe you existing role to be you have two options, in reality - resign (or not renew) your current contract or accept you were inside IR35 all along. Which you choose rather depends on where your next income would come from.

Either way, the client knows what they want and expect, so getting them to change their mind is probably futile. Knowing how agencies work, what's in your contract probably doesn't really align to the client's expectations and never has.

[Lance]

If the SDS moves you from outside to inside then it's not a contract change. You'll need a new contract.
Expect a notice of termination if the contract runs beyond April 5th.

[northernladuk]

Yes it does. Well not change it but make it irrelevant in some parts. It's the clients view on the engagement and they expect it to go. We've long said working practices trump the contract so doesn't really matter what is on paper just the WP. The SDS also forces the issues where sometimes it's just pushed under the carpet. For example substitution. Having it in the contract but not invoking it has been a partial defence in the past but if you ever ask the client and they say know then it's blown. The SDS asks them upfront. You might think you've got the right but the client can always say we never intended to allow it.

There is a complaints procedure for SDS's but good luck with that.

Yes it's enforceable. It's the clients perception of the gig. Accepting work exists in nearly every gig. PM's particularly get another project after the last. The client manager will expect you to take on work if it gets quite like anyone else in the office. I've even seen them try that on the Cognizant et all lot and an account manager quickly pops up asking for more money.

It is what it is and very little you can do about it.

I'm assuming you've been given and inside determination. If so you've now got the issue that you were inside all along.

I would have thought they would have produced a new contract for April onwards that doesn't bother with most of the IR35 friendly clauses as they are irrelevant if you are inside. It should state the reality of the situation. That said I expect the agents will still churn out their template which will look much the same but you are inside now, whatever the contract says.

[Stormy]

I have received my SDS which I disputed as some of the statements in it clearly did not reflect my written contract or the actual working practice. The dispute was rejected so these conflicts remain – some of which are significant to my day to day operation.

I’m seeking clarification from the Client but they are not being particularly communicative so would appreciate your views.

Does the SDS effectively become a sort of modification to my overall contract and terms and conditions ?

Are the individual findings of the SDS enforceable ? e.g. the determination found I have to accept further work which is not what anyone's expectations are or what the written contract says.

Thanks