Reply to: Advice Please

[Underbase]

2 Week Break

Given it doesn't mention working days or Mon-Fri, you'll be fine after 13 weekends

I have seen this many times from being someone who hired people for banks. It was always to stop contractors using more than the budgeted amount. Also the banks as someone mentioned often have a compliance policy that people need a two week break. This was so that work could be checked and any fraud would be detected while someone else did your work for you. If you look at the number of times fraud is found when someone is on holiday/maternity leave/sickness leave you will see why they require it. I believe some of the most famous cases of fraud were hidden for so long by people making excuses for not taking said break so they are pretty firm on it these days, last time it took sign off from God to get out of this requirement.

[fidot]

The number of days in which the Services will not be performed by each Contractor
shall, unless otherwise agreed between the Client, the Company and the Contractor,
be not less than 25 days (excluding bank holidays) in any Assignment of a 12 month
period, such period of non-performance to be pro rated by reference to the duration
of the Assignment.

Given it doesn't mention working days or Mon-Fri, you'll be fine after 13 weekends

[billybiro]

I think there isn't enough information to say. If as Lisa says this is in to comply with emploments legislation it could be very bad indeed.

Op needs to get the full context reviewed by a contract specialist.

Assuming the wording is correct and without other context, I'm inclined to agree with this (i.e. that it is bad for IR35, not good).

I meant, if a client has budget for X days, surely they then just offer a contract for X days, not a contract for Y days (where Y > X) and politely "ask" you to take the difference in days off as "holiday"? That does smell of D&C IMHO. Not to mention what Lisa said, if the reasoning behind this is indeed to comply with employee-based working time legislation, then that is not a good pointer at all.

[northernladuk]

I would have said this was good from an IR35 perspective as it clearly ties in with MOO.

Effectively they are saying that they are not able to offer you work every day for the duration of the connract.

I think there isn't enough information to say. If as Lisa says this is in to comply with emploments legislation it could be very bad indeed.

Op needs to get the full context reviewed by a contract specialist.

[Scrag Meister]

I read it as you must take 25 days 'off' from the contract in 12 months.

Bank perchance?

Ditto, and also if you are in banking you'll need to take at least one break of minimum 2 weeks as part of these days.

[Martin Scroatman]

I would have said this was good from an IR35 perspective as it clearly ties in with MOO.

Effectively they are saying that they are not able to offer you work every day for the duration of the connract.

[Danglekt]

Sometimes they get seen as money grabbing tossers.

That doesn't have as much to do with not taking holidays as they think...

[MrMarkyMark]

They've budgeted to pay for up to 235 days a year, but not 260. So you have to take at least 25 days off.

It's probably positive for IR35. Instead of telling you which days to work, they are giving you that responsibility, just saying that you have to keep within their budget. I'd certainly argue, if challenged, that this clearly demonstrates they AREN'T exercising control on when you work, the only limitation they are putting on is how much work they are willing to pay.

They could have said, "Max budget for the year is £X and contractor not to work in excess of that amount" but then they'd have to customise it for every contractor based on rate. This lets them just have a standard clause.

This

[psychocandy]

Can't see anything wrong with this. Client just wants to budget for a normal amount of holidays.

Wouldnt affect me - I always take more anyway.

BUT, I have seen clients in the past get a little irate at contractors who never ever take a day out. Sometimes they get seen as money grabbing tossers. I think a lot of clients will budget and assume a contractor will take holidays so this upsets things sometimes...

[LondonManc]

They've budgeted to pay for up to 235 days a year, but not 260. So you have to take at least 25 days off.

It's probably positive for IR35. Instead of telling you which days to work, they are giving you that responsibility, just saying that you have to keep within their budget. I'd certainly argue, if challenged, that this clearly demonstrates they AREN'T exercising control on when you work, the only limitation they are putting on is how much work they are willing to pay.

They could have said, "Max budget for the year is £X and contractor not to work in excess of that amount" but then they'd have to customise it for every contractor based on rate. This lets them just have a standard clause.

+1

WWIBS

Exactly as I read it too, both from an understanding and an IR35 point of view. They don't care how you structure your non-billing days. If you want to work non-stop, get your work completed and then start a new gig in month 12, it could even work to your advantage. My target billed days for a year is 220, so you're easily above that.

[mudskipper]

Perhaps you could negotiate to say that you are contracted for 235 days (or whatever) over a 12 month period instead - I'd be happier with that wording.

[WordIsBond]

They've budgeted to pay for up to 235 days a year, but not 260. So you have to take at least 25 days off.

It's probably positive for IR35. Instead of telling you which days to work, they are giving you that responsibility, just saying that you have to keep within their budget. I'd certainly argue, if challenged, that this clearly demonstrates they AREN'T exercising control on when you work, the only limitation they are putting on is how much work they are willing to pay.

They could have said, "Max budget for the year is £X and contractor not to work in excess of that amount" but then they'd have to customise it for every contractor based on rate. This lets them just have a standard clause.

[LisaContractorUmbrella]

I think that this refers to holiday i.e. you will need to take not less than 25 days holiday in each year (pro-rated accordingly). Presumably this is to comply with the EC Working Time Directives but it would suggest that the company consider you to fall under the definition of 'employee' which would not be great from an IR35 point of view

[northernladuk]

Thanks. Is this bad from an IR35 perspective?

Could be. All depends on the contract. Smacks of D&C but again it's all about the context. Banks are known for having forced periods of the gig so if that's the case and it applies to contractors only then no.

At the very least ask the agent or client to clarify but better still get a specialist like QDOS to review it properly.

[northernladuk]

Jeez, I've gone over it I've completely confused myself now.