Reply to: What's the importance of this clause ? Please help

[NibblyPig]

It's like hiring a plumber to fix your boiler, you pay him to do the job, but you don't tell him how to do it.

TBF most clients don't understand contractors they think they're just expensive temporary permies.

If the client doesn't budge, weigh up the odds of defending yourself against an IR35 investigation without it.

While people say that the clause lets you do whatever you want and thus the client's reluctance is understandable, you can also say that lack of a clause means the client is gonna control your every move, and you'll be a permie.

So I would say, imagine HMRC comes along and says do your working practices put you under SDC. If the client is omitting the clause because they want to control your hours, work, etc. then abandon ship. Otherwise, it's probably fine. I expect you'll need to talk to the client about how they intend to use you.

Maybe just amp up the other parts, like specifying a named project with a defined goal, and check how the client wants to operate.

[platforminc]

Then I would suggest, if the company cannot support this role themselves and have brought you in as a contractor, to work autonomously for a specific project you'd be fine without the SDC clause. However, if the role requires you to become integrated within the team and there would be some sort of reporting structure in place I'd suggest that the clause would be useful.

Without more information it's impossible to give you guarantees but I would suggest that a fail from Qdos (who I assume questioned your working practices) should pretty much tell you what you need to know

The setup is that the company are primarily based in USA, however I will be offering technical expertise covering Europe. So there will be a reporting structure to the guys in the states.

I have sent qdos the amendment made to the contract and will await their review.

[LisaContractorUmbrella]

Support to an existing department and only person in the UK performing the role.

Then I would suggest, if the company cannot support this role themselves and have brought you in as a contractor, to work autonomously for a specific project you'd be fine without the SDC clause. However, if the role requires you to become integrated within the team and there would be some sort of reporting structure in place I'd suggest that the clause would be useful.

Without more information it's impossible to give you guarantees but I would suggest that a fail from Qdos (who I assume questioned your working practices) should pretty much tell you what you need to know

[northernladuk]

Anyone.

I've lost what you are after now. You've had a number of the main pillars included now, being MoO and RoS. You just can't get the D&C statement in which isn't common anyway. There is a question whether the working conditions will reflect these however.

IMO you now know the situation and have to make a decision based on your attitude to risk. It's not water tight but it's not bad.

You could shore all this up with a Confirmation of Arrangements letter (which can be found on the QDOS site for free) which I believe does cover some comments about independent working (but could be wrong). Not all clients will sign CoE's though so possibly another unknown.

It is what it is now so it's up to you... Unless I'm missing something?

[platforminc]

Anyone.

[platforminc]

will you be the only person in the company performing the role or will you be working as support to an existing department?

Support to an existing department and only person in the UK performing the role.

[LisaContractorUmbrella]

looks like bos support role

“During the Term, Consultant shall provide Client with services as
a Technical resource to support (client products).”

will you be the only person in the company performing the role or will you be working as support to an existing department?

[platforminc]

The role is that of a technical consultant to manage their systems.
The rate is pretty pretty good and slightly above market rates, but I do want piece of mind.

So what i am struggling with is taking this role and having an instance 20% rise on my current rate or staying put with existing gig which uses a IR35 compliant contract all the way.

[pr1]

I realise I am repeating myself here but - what are you going to be doing? What's the role? Could you provide a substitute? Will you be supervised? Will you receive direction? Are there permies there already doing a similar job?

You can have what you like written into a contract but it has to be representative of your actual working practices otherwise it's not really worth the paper it's written on

looks like bos support role

“During the Term, Consultant shall provide Client with services as
a Technical resource to support (client products).”

[LondonManc]

If you've got an IR35 contract as advised by QDOS and working practices would trump this clause, then it's simply a case of managing your working practices. If there's more than one way of achieving something then it may be that there are declared coding standards that need to be adhered to, e.g. all ETL via the ETL tool rather than hand-cut SQL.

[LisaContractorUmbrella]

I think the main difference here is that going through an agency, they are more than happy to ensure that the contract is IR35 friendly as not doing so would mean they would loose business.

Going directly to a company that I don't think employ that many contractors means they get cold feet drafting contracts like this. They were asking me that they could also put me on a fixed term contract and i would be paid from the payroll, and its making me think, whats the point of being a contractor then ?

I realise I am repeating myself here but - what are you going to be doing? What's the role? Could you provide a substitute? Will you be supervised? Will you receive direction? Are there permies there already doing a similar job?

You can have what you like written into a contract but it has to be representative of your actual working practices otherwise it's not really worth the paper it's written on

[northernladuk]

Wow, that's quite a spectacular fail if it needs all that to fix it. My first through reading through that is that these are pretty key clauses to be missing and affects the way the client engages with the contractor substantially, if it's missing and they are so willing to put it in I can't help thinking they are just paying lip service to it all. For example if they don't allow a sub I can't believe they will change their mind with just that clause adding and really allow one when you are on site. I can't help thinking the working practices won't change one jot.

I think you are gonna have to make a decision on this one. I'd be very concerned about this gig and would seriously consider turning it down unless there are some very good reasons not to i.e. I'm about to lose my house, fantastic new tech, above market rate. If there is other stuff coming up I'd be tempted to wait... It looks like it's going to come down to your call I am afraid.

[platforminc]

But your contract is IR35 friendly? You say QDOS only suggested that was put in. I'm assuming it was a pass but that clause would be nice. We would all love that clause but there is little to no chance of most of us getting it in.
Are you sure you are not making an issue where there isn't one?

QDOS marked the contract as a fail for 3 reasons. For Clarity, I have copied and pasted what qdos said below. The client has agreed to insert all 3 clauses apart from the clause that I have numbered 2.

Below is the extract from the qdos review.



A FAIL result means that in our expert opinion your contract falls inside of IR35 meaning that you could be
considered a disguised employee by agreeing to work to these terms. If the following changes could be made
to the contract we would consider this contract outside IR35.

The contract does not contain clauses relating to the three key test which are used to determine IR35 status,
namely right of substitution, mutuality of obligation and control. I recommend that a clause is added to cover
these issues, please see my example clauses below:

1) The Consultant shall provide the services using suitably qualified personnel of their own choosing. The
Consultant reserves the right to substitute any personnel, provided the client is reasonably satisfied that the
substitute possesses the necessary skills and qualifications for the satisfactory completion of the services.

2) The Consultant will remain liable for the services completed by substitute personnel and will bear any costs.
Client shall have no right to, nor shall seek to, exercise any direction, control, or supervision over the
Consultant in the provision of the services. The Consultant shall endeavour to co-operate with client
reasonable requests within the scope of the services, however it is acknowledged that the Consultant shall
have autonomy over their working methods.


3) Client is under no obligation to offer further contracts or services to the Consultant nor is the Consultant under
obligation to accept such contracts or services if offered. The Consultant is not obliged to make its services
available except for the performance of its obligations under this Agreement. Both parties agree and intend
that there be no mutuality of obligations either during or following the agreement, whatsoever.

Additionally, within the Services and Deliverables section in the schedule, this suggests you are providing
personnel. This should be amended to read “During the Term, Consultant shall provide Client with services as
a Technical resource to support (client products).”

[northernladuk]

But your contract is IR35 friendly? You say QDOS only suggested that was put in. I'm assuming it was a pass but that clause would be nice. We would all love that clause but there is little to no chance of most of us getting it in.
Are you sure you are not making an issue where there isn't one?

[platforminc]

I think the main difference here is that going through an agency, they are more than happy to ensure that the contract is IR35 friendly as not doing so would mean they would loose business.

Going directly to a company that I don't think employ that many contractors means they get cold feet drafting contracts like this. They were asking me that they could also put me on a fixed term contract and i would be paid from the payroll, and its making me think, whats the point of being a contractor then ?