Reply to: Client / Agency contract -- missing MyCo name !!

[Billy Pilgrim]

If I could just step in briefly here - there is an important difference between simply being named (whether as an individual or limited company) in the agency-client contract or actually being made a party to that contract (i.e. with rights and obligations between you as an individual to that client).

If you are made a party, as an individual, and you have obligations to the client itself to perform the work then this has serious repercussions to IR35 status as you are committing to provide a personal service.

Merely being named in that contract is not a significant problem although it would certainly be preferable for your limited company name to be used rather than your personal name.

So I may have rights with the end client then ? What rights ? Should the end client be even more worried than I am about the contract ?

But the crazy thing it - I am a party to the contract - ME not myco - BUT I am allowed to provide suitable substitutes.....it goes out of its way in terms of MOO.....this is an excerpt form the agency/client contract...from the "Personnel" section..

"The Consultant may send a substitute to perform the Services.
However the Client may reject the substitute if it is reasonably satisfied
that the Substitute does not posses the necessary skills, qualifications
and expertise required. Where a substitute is sent the Consultant will
remain responsible for making all payments to the substitute, such
other persons as are approved in writing by the Client (such approval not
to be unreasonably withheld or delayed)
The Client recognises that the Consultant undertakes the Services in
the capacity of its Personnel who will use their own initiative as to the
technical manner in which the Services are provided
The Client is not obliged to offer the Consultant or the Personnel any
work and the Consultant and Personnel are not obliged to accept any
work that may be offered, save for the work agreed under this contract
for services. No party wishes to create or imply any mutuality of
obligations whatsoever either in the course of or between any
performance of the Services or during any notice period. The Client is
not obliged to pay the Consultant at any time when no work is
available during this agreement"

I am getting conflicting evidence from all over the place now - head is spinning !!

Cheers

[Chugnut]

This has been the ridiculous position for ages. How on earth are you supposed to have any confidence in your contract?

1/ Have a well worded and insured contract? Check.

2/ Ensure working practices reflect it? Check.

3/ Have access to upper level contract even though client categorically denies any employee-employer relationship? Err... Big Brother will get back to you.

Unless I'm mistaken, it seems to be that all adhereance to 1/ and 2/ are totally negated by anything contained within 3/. I would expect my legal representative (and any judge considered worthy of practice) to overthrow any such claim of disguised employment as completely unfair due to circumstances totally outside mine and my company's control. Jumping through hoops anyone?

Never mind, eh? Happy Christmas.


Chug.

[lawspeed]

Party to Contract

If I could just step in briefly here - there is an important difference between simply being named (whether as an individual or limited company) in the agency-client contract or actually being made a party to that contract (i.e. with rights and obligations between you as an individual to that client).

If you are made a party, as an individual, and you have obligations to the client itself to perform the work then this has serious repercussions to IR35 status as you are committing to provide a personal service.

Merely being named in that contract is not a significant problem although it would certainly be preferable for your limited company name to be used rather than your personal name.

[Billy Pilgrim]

Spoke to Sarah Bauer this morning....

She seems to think I'll be fine...that 95% of contracts between agencies/end clients will mention the consultant directly by name...after all that is what the client is paying for.......so long as the two contracts are not conflicting.

She explained to me that back-to-back contracts are not 'matching' = but rather non-contradictory

Said its the actual working arrangements that would define whether IR35 caught.....the fact that I was sat at home and not on clients premises seemed to be a factor in my favour

[Billy Pilgrim]

Thanks for the advice...

I'll be on to Bauer and Coterell again tomorrow...

they reviewed - and got the agency to re-write my original contract.

[The Lone Gunman]

The agency client contract should not mention you or your company realy.

They should just state that agent X will provide <whatever service> has been agreed at a <rate>. They should not be stating who will do it. That way they wont have to re write the contract every time they put someone new in.
Neither agents or clients want to do this as all they are realy interested in is covering their own backs should it all go Pete Tong.

1. Insist on a precedence clause stating that where terms conflict your terms with the agent take priority. Then it doesnt matter what the agent client contract says.
2. Insist that the agent provide a warranty to cover any extra libility incured due to mis-matched contracts. This covers your costs if some dodgy agent (sorry, not Dodgy Agent) puts a precedence claus in both contracts.

Dont hold yer breath mind. If the agnet won't play ball the vote with your feet.

[wantacontract]

right just told my agent to ensure that my name is not mentioned in their contract, only my company name. And that i want an email stating confirming that. So if it turns out they lied to me, I have a leg to stand on with the taxman...

[ratewhore]

I do love the vagueness and uncertainty of contracting. Keeps you on your toes...

[malvolio]

If you find you about it (big If, though) make a fuss - in fact, have a blazing row with your agent, who has signed a contract that he cannot adhere to and is therefore potentially guilt of misrepresenatation.

You should also insist that the client/agency contract does not name you personally, since you personally have never signed a contract to that effect. Although I don't think that will happen...

Tick the box on the P35, since you are now IR35 caught, without question. You will of course lose several grand in extra taxation, so I suggest you charge the agency for it,

Then start looking for a new job, because the agency will likely bin you at the first opportunity...

[Spacecadet]

I thought the only contract you needed to be concerned with was the one between your company and the agency.

The agency-client contract was between them, the wording of it could be anything as you're supplying the agency with services (that are then passed on to the end client) not the end client directly.

The fact that you're mentioned in person on the agency-client contract is actually an error by the agency as the contract they've signed with your company does not name you personally, so they cannot in turn make a promise to the client that you will be the one doing the work.

Also each contract is supposed to be confidential, ie you're not suppose to see the agency-client contract and the client is not supposed to see yours.

Hector should not be concerned with the agency-client contract when dealing with your company, you have no input into its wording and, as stated, the contract is between the agency and the client, not between the client, agency and yourself/company.

I myself, if caught by the taxman and questioned over the agency-client contract would simply state that I had nothing to do with that contract. Mine is with the agency. They are the ones i deal with and invoice and they are the people responsible for paying my invoices. For all I care, the agency could offer Mickey Mouse as a replacement if I failed to turn up for work. My contract clearly states that I can replace myself with someone who the agency (not the client) agree is suitable. Of course the agency will want to check suitability with the client but that is their wish not mine and nothing to that effect is inferred in the contract.
F*** it, the client could be contracted to paying the agency in magic beans, it has that little to do with me.

Edit: and i NEVER sign the contracts myself, another authorised representative of my company does.

[To BI or not to BI?]

Oh do keep up chaps - I've been saying this for at least two years now.

That's all very well, but what's the solution?

[Denny]

Oh do keep up chaps - I've been saying this for at least two years now.

I've been saying that for at least 2 years and a day.

So there!

[malvolio]

Oh do keep up chaps - I've been saying this for at least two years now.

[To BI or not to BI?]

So what's the point of having your contract checked for IR35 compliance (and paying money for it) if the contract between EB and client may be totally different (and, usually, we won't have the chance to look at it)?

Confused.....

[wantacontract]

so hold on a minute, am I right in saying that althought my contract between the pimp and I is passed by say B&C as IR35, but if the client and agency contract states my name, rather then my company, I am stuffed regardless!!!!

So on that note, I guess I should be asking to view the contract between the pimp and the client??