Does this constitute a contract? Advice needed....

[TykeMerc]

Ok, Sole Trader, invoicing direct, forget IR35.

You've invoiced and been paid a couple of times on the basis of the agreement, I think anyone reasonable would call that a contract.
As I said earlier a contract doesn't have to be riddled with terms and conditions or be written in legalese for that matter or even be written down come to that.

It's up to you if you agree an amendment to the (very) basic contract you have to embed terms and conditions, just be careful what you agree to.

[16simon]

Thanks again for the helpful advice, everyone.

I didn't go into this with my eyes closed, I have consulted an accountant, been doing monthly accounts as per his recommendation, opened a business account, arranged Public Liability Insurance, etc.

Tykemerc, in answer to your questions:

1. I'm invoicing direct.
2. That email is all I have
3. I'm set up as a sole trader

I'm very interested in what you and Moscow Mule said about IR35 perhaps not being relevant to my situation. Also about what Tyke and Lisa wrote about whetheer the email does in fact from some kind of contract.

I'm meeting with my manager next wek so will try to perhaps get a proper contract for providing my services drawn up, which could mention working patterns so that we are both clear about what to expect from this.

[THEPUMA]

Offer - You offer your services for a rate
Acceptance - The client says yes
Consideration - The client pays (this can be in full or staged payments over a period)

It's not necessary to have lots of terms and conditions, but it can be pretty silly for either party or both parties if there aren't any.

It would appear from your post that an offer was made and accepted and some consideration has been made, it could be argued from your first post that no matter what, you're entitled to charge £40k over 10 months and the client can't terminate the contract, nor can you.

Admittedly this is very simplistic based on what you posted.

I am an accountant not a lawyer but we do get a basic training in contract law. From memory, an acceptance is defined as "an unconditional assent to all the terms of the offer.". The email received was "subject to..." so wasn't unconditional. It would therefore depend whether or not "all the required information relating to your self employment status" was submitted to them.".

There will be all sorts of other legal anomalies which I am not qualified to comment on such as whether or not the contract had any notice period etc.

Puma

[LisaContractorUmbrella]

Although it would be ideal to have a contract in writing it is not absolutely necessary - a binding obligation can be established verbally or by implication. The question is whether this would be a contract for services or a contract of service; one will establish you as an employee and one will not under the terms of employment law. It sounds as though the client has significant control over what you do - I assume that when you worked from home it was necessary for you to obtain permission to do so? Also, as you have personally accepted the work (presumably you couldn't send someone else in your stead) and the client is obliged to pay you for it there is mutuality of obligation. So, with regard to your security, you may have a case for unfair dismissal should the contract be terminated without reason before the agreed date. However, from an IR35 point of view both these things would count against you. Ultimately, as a contractor, you can either opt for security and work inside IR35 or you can accept that you have no 'employment' rights whatsoever and negotiate your working practises so that you can work outside IR35 - unfortunately you can't have both.

[Moscow Mule]

IR35 could be a non issue if you're supplying direct as a self employed sole trader as there are no dividend debates, just income and expenses.

This.

There's no intermediary in a direct self-employment contract, nor are there any dividends etc so IR35 is irrelevant.

To the OP - are you self-employed?

[TykeMerc]

A few questions.

1. Is there an agency involved or are you invoicing the client direct?
2. Do you have any kind of statement of work at all or just that email?
3. Are you invoicing as a Sole Trader or a Ltd?

Incidentally my understanding of UK contract law at the basic level is that there are 3 requirements to have a contract

Offer - You offer your services for a rate
Acceptance - The client says yes
Consideration - The client pays (this can be in full or staged payments over a period)

It's not necessary to have lots of terms and conditions, but it can be pretty silly for either party or both parties if there aren't any.

It would appear from your post that an offer was made and accepted and some consideration has been made, it could be argued from your first post that no matter what, you're entitled to charge £40k over 10 months and the client can't terminate the contract, nor can you.

Admittedly this is very simplistic based on what you posted.

IR35 could be a non issue if you're supplying direct as a self employed sole trader as there are no dividend debates, just income and expenses.

[northernladuk]

Thanks for the replies everyone!!

I must come across as a clueless noob, which I am, but we've all got to start somewhere

I was offered this work as a contractor so as to get round the requirements to advertise the job, but I'm hoping that it will be my way into contract work, so I'm busy trying to sniff out other work that I can do at the same time or at the end of this work.

Pay is no problem, I've submitted two invoices so far which were paid promptly. The problem is that they want to treat me as an employee, and the things that I mentioned in the original post are the most recent manifestation of this. When I meet my new manager, I'm going to discuss setting objectives which I will then invoice for: how I go about this, and where I work etc is then up to me.

I am a bit nervous at the moment, especially since now is not a good time to be looking for public sector work (which matches my skillset best), particularly since I'm starting to realise how little security I have. Something else that is making me jumpy is that I am running out of work to do, as I'm waiting for various payments to be authorised so that I can get on with things. I have given my manager plenty of time - and reminders - about authorising these payments btw, so it's down to them rather than me if I run out of work. Still, I'd rather be busy.

Anyway, being positive, I am good at what I do, they don't have anyone else who can do it, and they need it doing, so from that point of view I'm in a good position.

Is there anything that I might do to gain a bit more security (such as ask for a proper contract) or should I accept that this is an inherent risk in contract work? I have done some research into IR35, but is there anything that I should do - particularly if asking for a contract - to ensure that I don't fall foul of it?

When you say adverise the job. You mean for a permie or for a contractor? If they were going to advertise it as a permie then you are going to get treated like a permie. If it is a permie role it his highly likely then you are going fall well within IR35. It is hardly surprising they are treating you as a permie cause that is what they wanted.

There isn't much security as a contractor. You can have a notice period (in your non existent contract) but they can just say there is no work and not pay you for the period so pointless really. Contractors are often there to be used and cast aside so really you ought to have a period of agreed work (in your non existent contract) and it then ends. That is about how secure contract work is. Working on site with no contract is about as unsecure as it gets next to cash in hand and is a ridiculous situation to be in, particularly when you say you are trying to focus on security. They can walk you off there and then and not be obliged to pay you a penny.

You really need to read up. There are plenty of links at the side of this page and more than enough IR35 discussions here to keep you happy for months. If you are new to all this should I hazard a guess that your not fully aware of how to do your accounts? Do you have an accountant? Do you have LTD? Are you charging VAT and paying the VAT/TAX man? You don't mention these but I have to say from what I read here your not a contractor at all. You are a permie who has opted to buck the system and it will all come crashing down very soon for obvious reasons. Apologies if you have all this in place and just haven't mentioned it.

[16simon]

Thanks for the replies everyone!!

I must come across as a clueless noob, which I am, but we've all got to start somewhere

I was offered this work as a contractor so as to get round the requirements to advertise the job, but I'm hoping that it will be my way into contract work, so I'm busy trying to sniff out other work that I can do at the same time or at the end of this work.

Pay is no problem, I've submitted two invoices so far which were paid promptly. The problem is that they want to treat me as an employee, and the things that I mentioned in the original post are the most recent manifestation of this. When I meet my new manager, I'm going to discuss setting objectives which I will then invoice for: how I go about this, and where I work etc is then up to me.

I am a bit nervous at the moment, especially since now is not a good time to be looking for public sector work (which matches my skillset best), particularly since I'm starting to realise how little security I have. Something else that is making me jumpy is that I am running out of work to do, as I'm waiting for various payments to be authorised so that I can get on with things. I have given my manager plenty of time - and reminders - about authorising these payments btw, so it's down to them rather than me if I run out of work. Still, I'd rather be busy.

Anyway, being positive, I am good at what I do, they don't have anyone else who can do it, and they need it doing, so from that point of view I'm in a good position.

Is there anything that I might do to gain a bit more security (such as ask for a proper contract) or should I accept that this is an inherent risk in contract work? I have done some research into IR35, but is there anything that I should do - particularly if asking for a contract - to ensure that I don't fall foul of it?

[northernladuk]

Stuff

You seem very chilled and relaxed tonight Bolshie. Having a nice evening?

[BolshieBastard]

Have you been paid yet?

Are we there yet!?

Seriously though............

Hello everyone, I'm new here so please be gentle... I have
searched previous posts and couldn't find anything relevant.

I’m working in the public sector, and everyone is getting very
nervous as the cuts loom. My manager has gone on sick leave (possibly
due to stress… I expect that they may be off for some time) and my
interim manager is putting his foot down, and trying to treat me as an
employee, in particular restricting me from working from home. I
previously did this one day a week (only when I had suitable work to do)
which doesn’t seem excessive to me.

Unfortunately, the control freaks who inhabit the permie management world like to show their power by doing this. Unless there is something specific in the contract stating its your decision when to work at home, you'll have to negotiate this with each manager you have.

You could state firmly that it was agreed with the previous manager when you accepted the role that you could work from home one day a week. Until he changes that or is permanently replaced and not just have an intrim, you'll continue with the current arrangement.

If he doesnt like that, you will have to make the choice of doing your own thing and possibly being terminated or conceed the issue.

I’d like to stand up for myself on this issue (particularly due to
IR35), but first of all I’d like to see how secure my position is. I
have an email from my previous manager stating:

‘Following our conversation today I can confirm that the data
position will commence on 1st June, paid at 40k over 10 months. This
will be on a self employment basis and subject to all the required
information relating to your self employment status being submitted to
us’

Following this, I supplied them with all the documentation they asked for. I don’t have any other paperwork from them apart from this. Do you think that
this comprises a binding contract and gives me any security? Or should I
start being VERY nice to my new manager?

Im not certain how much weight the email will carry. I think you should just stick to your guns and see how it goes.

[northernladuk]

I am very surprised the public sector forgot to give you a contract. I thought they would have given you something even if just tocover the hirings guys own back etc.

I am even more surprised you think that that one paragraph is a contract but thats another story

Edit : OK nuts to that. Its this story...

So... Mr OP.... You don't want to be treated as a hidden permie but you don't have a contract. And you want to address the IR35 issue with no contract? You are worried about the cuts and your job but you didn't think to secure it with a contract (not that it would mean much when it comes to job security ofc)You seem to have some undertsanding of IR35 and hidden permiship but non of getting a contract and getting paid? Explain that one to me again....

[cojak]

Have you been paid yet?

[malvolio]

Hello everyone, I'm new here so please be gentle... I have
searched previous posts and couldn't find anything relevant.

I’m working in the public sector, and everyone is getting very
nervous as the cuts loom. My manager has gone on sick leave (possibly
due to stress… I expect that they may be off for some time) and my
interim manager is putting his foot down, and trying to treat me as an
employee, in particular restricting me from working from home. I
previously did this one day a week (only when I had suitable work to do)
which doesn’t seem excessive to me.

I’d like to stand up for myself on this issue (particularly due to
IR35), but first of all I’d like to see how secure my position is. I
have an email from my previous manager stating:

‘Following our conversation today I can confirm that the data
position will commence on 1st June, paid at 40k over 10 months. This
will be on a self employment basis and subject to all the required
information relating to your self employment status being submitted to
us’

Following this, I supplied them with all the documentation they asked for. I don’t have any other paperwork from them apart from this. Do you think that
this comprises a binding contract and gives me any security? Or should I
start being VERY nice to my new manager?

I think a bit more information is needed. Is that all you have that dictates the scope of your work and the associated terms under which you're working and getting paid? 'Cos if it is, you may have a problem, in that on whatever basis your client is treating you cannot be challenged. That works the other way round, of course - there's nothing stated to stop you working from home - but I think you might lose that particualr argument.

Contracts are for when things go wrong or get changed. Looks like you just found that out...

And by the way, the point is using a contractor is so you can drop them quickly when the need arises. Don't get hung up on job security, you haven't got any.

[16simon]

Hello everyone, I'm new here so please be gentle... I have
searched previous posts and couldn't find anything relevant.

I’m working in the public sector, and everyone is getting very
nervous as the cuts loom. My manager has gone on sick leave (possibly
due to stress… I expect that they may be off for some time) and my
interim manager is putting his foot down, and trying to treat me as an
employee, in particular restricting me from working from home. I
previously did this one day a week (only when I had suitable work to do)
which doesn’t seem excessive to me.

I’d like to stand up for myself on this issue (particularly due to
IR35), but first of all I’d like to see how secure my position is. I
have an email from my previous manager stating:

‘Following our conversation today I can confirm that the data
position will commence on 1st June, paid at 40k over 10 months. This
will be on a self employment basis and subject to all the required
information relating to your self employment status being submitted to
us’

Following this, I supplied them with all the documentation they asked for. I don’t have any other paperwork from them apart from this. Do you think that
this comprises a binding contract and gives me any security? Or should I
start being VERY nice to my new manager?