IR35 compliance question - agency says contract is immutable

[craig1]

A further thing to consider if they do get very stubborn about it, if the client is just using the agency as an intermediary so that they aren't directly contracting with your company then you could tell the agency that you'll just go with another agency on the client's PSL.

As an aside though, some of these agencies work on abysmally low fixed margins so they have no incentive to be nice to you on contractual items such as payment terms. Make sure you're not signing up to stupidly long terms. One such arrangement I worked on had the agency on 4% fixed margin and they tried to get me to sign up to monthly bill and 6 week payment terms. I did get them down to weekly bill/weekly pay through using the threat to go to another PSL agency but it was very, very hard work managing them throughout the contract and getting my money.

[insomniac]

Wow, thank you for the amazing feedback. This has been very, very helpful.

[northernladuk]

Perversely it could work in your favour.

If the written contract really is immutable then it suggests it is of reduced relevance in reaching a IR35 decision cf a contract which had been neogotiated bespoke.

Even HMRC would admit IR35 doesn't cover every situation, but if the agency are trying to sweep everyone into a immutable contract, ipso facto that written contract becomes marginalised.

I am not so sure about that. I see the theory but I haven't seen this considered in any cases whatsoever. I can't really see how an agent not willing to change a contract makes one iota of difference. It surely cannot be in your favour if the contract falls inside IR35 immutable or not. It is a contract put forward by the agency, take it or leave it. I can't see how that will affect any legal argument at all. Am I missing something here?

[kingcook]

Surprised no-ones pointed out the obvious here...

That is - don't believe the agency they're trying it on. All they want is you signed up with the minimum of fuss and time expended.

^ This is so true.

Happened to me recently. Agent wanted me to sign that very day and return the contract to them. I politely informed them that I need to get it checked.

Got the usual "never had problems with other contractors" malarkey. He also said that they don't like to wait around and this could be offered to another contractor if I kept them waiting (not his exact words but somthing along those lines).

I just said he'd only have to wait a short while, but it's absolutely necessary from my POV. He waited and it all worked out OK.

[BolshieBastard]

Who's that agency Bolshie Bastard often recommends? beaur & countrill or something like that?! They do the IR35 contract review and then negotiate on your behalf with the agency, I believe.

Bauer & Cottrell. They do contract reviews but are not an agency. HTH.

[Jessica@WhiteFieldTax]

Perversely it could work in your favour.

If the written contract really is immutable then it suggests it is of reduced relevance in reaching a IR35 decision cf a contract which had been neogotiated bespoke.

Even HMRC would admit IR35 doesn't cover every situation, but if the agency are trying to sweep everyone into a immutable contract, ipso facto that written contract becomes marginalised.

[Wanderer]

Get it checked out. Tell the agency tough they'll have to wait. If there are clauses in there which you really don't agree with then negotiate. There no such thing as a standard contract no matter what all the agencies say....

Yep! Saying the contract is immutable is just the opening line of their negotiation. Good advice from kingcook too.

Also, if you have a review that says your contract has passed IR35 then you can use this in your "reasonable care" defence against penalties being levied by HMRC in the event that you fail an IR35 investigation.

[GillsMan]

Who's that agency Bolshie Bastard often recommends? beaur & countrill or something like that?! They do the IR35 contract review and then negotiate on your behalf with the agency, I believe.

[psychocandy]

Hello,

I have been offered a contract with one of the big banks, and was introduced through a personal reference not an agency. However, the bank does employ an agency to handle contractors and I've been communicating with them through the credit and reference check process.

I wanted to get the contract checked for IR35 compliance, and was told by the agency that they'd forward me the standard contract but that it was static, applied to all their contractors and not changeable.

So in this case, is there any point me paying for the compliance check?

Thank you.

Surprised no-ones pointed out the obvious here...

That is - don't believe the agency they're trying it on. All they want is you signed up with the minimum of fuss and time expended.

Get it checked out. Tell the agency tough they'll have to wait. If there are clauses in there which you really don't agree with then negotiate. There no such thing as a standard contract no matter what all the agencies say....

Of course, if they won't budge its then up to you whether to go for it or not but at least get the information first.

[kingcook]

Hello,

I have been offered a contract with one of the big banks, and was introduced through a personal reference not an agency. However, the bank does employ an agency to handle contractors and I've been communicating with them through the credit and reference check process.

I wanted to get the contract checked for IR35 compliance, and was told by the agency that they'd forward me the standard contract but that it was static, applied to all their contractors and not changeable.

So in this case, is there any point me paying for the compliance check?

Thank you.

I'd still get it checked. The review may come back fine, in which case you have no need to worry (putting the actual working conditions to one side).

If it needs a change or 2, take it from there. If they will go back on their word and make changes, winner. If they won't, then you can decide whether you want to accept the terms of the contract or not.

BTW the agency may not be willing to alter the standard terms, but may agree to change the schedule.

The alternative to all this is to just sit down, shut up, and do as you're told (do you really want that?)

[Craig at Nixon Williams]

It is still important to have the contract reviewed so that you know whether it is necessary to pay an 'IR35 deemed payment' to be compliant with the legislation. This applies irespective of whether the contract can be amended.

[LisaContractorUmbrella]

Agree with Greg - it is your working practises that far more realistically will determine your IR35 status than your written contract.

[Greg@CapitalCity]

The IR35 compliance check should consider both the written contract, and the actual working conditions. The contract check may be worthless (but useful for peace of mind, and at least you will know whether its any good or not), but a review of the actual working conditions may be useful.

[insomniac]

Hello,

I have been offered a contract with one of the big banks, and was introduced through a personal reference not an agency. However, the bank does employ an agency to handle contractors and I've been communicating with them through the credit and reference check process.

I wanted to get the contract checked for IR35 compliance, and was told by the agency that they'd forward me the standard contract but that it was static, applied to all their contractors and not changeable.

So in this case, is there any point me paying for the compliance check?

Thank you.