Contract review Fail

[Dark Black]

If your WPs are ok (outside IR35), why on earth would you declare yourself inside?

Just a bit nervous about having a failed review on the contract, hence asking for opinions - I am intending on declaring outside and I expect the WP will be OK (they always have been, I usually work hard to ensure the client understands)...

Valid TLC35 and keeping the difference in business? Belt n braces or what?

Worse case scenario - IR35 enquiry and Qdos fail the WP so dont offer cover?

What about IPSE+ as well?

Always had that (originally as PCG+), decided on TLC35 as well this time based on gut feel for this gig

[northernladuk]

If your WPs are ok (outside IR35), why on earth would you declare yourself inside?

Feel free to quote the entire original post so I have to scroll all the way down to read your single sentence response

[northernladuk]

Valid TLC35 and keeping the difference in business? Belt n braces or what?

What about IPSE+ as well?

[Project Monkey]

Take the gig, work as outside and just keep the difference in the business in case they come for it, don't stay at the client so long your exposure becomes too great.

Valid TLC35 and keeping the difference in business? Belt n braces or what?

[Project Monkey]

Given the market conditions I've had no choice but to proceed with this (normally I'd have walked away).

Received a copy of the contract for a new gig, it's an odd one, not like any I've seen before and I had concerns. I've had it reviewed by Qdos who raised the following points.

(Skip to the bottom of the post if you don't wish to wade through all this, it's purely for info).

Contract Extracts:







Qdos comments:



The agency has refused to make any changes arguing that they are just reflecting the client contract. Qdos for their part state the following:



They have also told me in a email that their TLC35 insurance (which have) will still cover me if the working practices are ok.

Obviously I will assess the working practices once on site, but the quandary I have is, assuming that the WP are ok, do I still risk calling it outside IR35 with a failed review (despite the QDOS statement above). The rate is decent enough for an outside IR35 contract but not for one that's caught.

If your WPs are ok (outside IR35), why on earth would you declare yourself inside?

[northernladuk]

Take the gig, work as outside and just keep the difference in the business in case they come for it, don't stay at the client so long your exposure becomes too great.

[Dark Black]

Given the market conditions I've had no choice but to proceed with this (normally I'd have walked away).

Received a copy of the contract for a new gig, it's an odd one, not like any I've seen before and I had concerns. I've had it reviewed by Qdos who raised the following points.

(Skip to the bottom of the post if you don't wish to wade through all this, it's purely for info).

Contract Extracts:

2. Supplier's Obligations
2.1 The Supplier shall:
(l) enter into a contract with the Consultant such that he or she is under obligations which reflect the provisions of
clauses 2, 4, 5, 6, 7, 8, and 9 as if the Consultant were a party to this Agreement in place of the Supplier.

8. Details and identity of Consultant
8.1 The Supplier warrants:
(b) that the Consultant has the experience, training, qualifications and any authorisation which the Client
considers are necessary, or which are required by law or by any professional body for the Consultant to possess in
order to perform the Services; and the Supplier shall, at the request of the Company, provide confirmation of the
identity of the Consultant and written references and co-operate in any checks in relation to experience, training,
qualifications and authorisations relevant to the performance of the Services

8.2 The Supplier may from time to time and shall as soon as possible after being required by the Company so to do, without prejudice to the other provisions of this Agreement, offer a suitable replacement consultant provided that:
(a) the Company shall be under no obligation to accept such replacement consultant if in its or the Client's reasonable opinion such replacement is not wholly suitable (whether by reason of skills, experience, training, qualifications, or authorisations);
(b) if a replacement consultant is accepted, the Supplier shall use all due diligence to ensure that handover
arrangements are made and shall, at its own expense, be responsible for the handover to the replacement
consultant and shall use its reasonable endeavours to procure that a suitable replacement consultant is available
to perform the Services as soon as possible and the Company may terminate this Agreement immediately by
written notice if no replacement is available within 5 Business Days of the Supplier receiving the Company's
replacement request.

Qdos comments:

2.1(l): The last part of this clause ‘as if the consultant were a party to this agreement in place of the supplier’.
Should be removed as it binds the individual to the agreement.

8.1 (b): It is fine to submit company resumes or profiles but references of individuals should be avoided as
this could imply that personal service is required. This clause should be amended to read as follows:
“that the Consultant has the experience, training, qualifications and any authorization which the Client
considers are necessary, or which are required by or by any professional body for the Consultant to possess
in order to perform the Services; and the Supplier shall at the request of the Company submit a resume and
co-operate in any checks in relation to experience, training, qualifications and authorizations relevant to the
performance of the Services;”

8.2 - The right to provide a substitute is one of the most important tests in determining IR35 status. It is
therefore crucial there is a strong clause within your contract and that your right to provide a substitute is a
genuine one, i.e., recognised by your end client. Not having a genuine right could significantly weaken the
prospects of success in the event of an IR35 enquiry. This clause is quite restrictive as the term “offer”
suggests that a substitute could be refused for any reason as you only offer a substitute, not actually provide
one. I would suggest that “offer” is amended to read “provide”.

The agency has refused to make any changes arguing that they are just reflecting the client contract. Qdos for their part state the following:

Please note that although your contract has failed our review, this does not mean that you are automatically
caught by IR35. In our professional opinion the terms and conditions of your contract are not currently strong
enough to suggest that you are working compliantly with regards to IR35 and the outlined amendments
should be made. However, it is important to take your actual working practices into account. These carry
more weight during an IR35 investigation because they accurately outline the way in which your company
provides the services

They have also told me in a email that their TLC35 insurance (which have) will still cover me if the working practices are ok.

Obviously I will assess the working practices once on site, but the quandary I have is, assuming that the WP are ok, do I still risk calling it outside IR35 with a failed review (despite the QDOS statement above). The rate is decent enough for an outside IR35 contract but not for one that's caught.