Reply to: IR35 Indemnity

[eek]

It sounds like whoever did the SDS was either an idiot or not connected to the people you were going to be working with so they had their expectations and the SDS filler-inner had theirs and never the twain shall meet.

What a shame for you, that would have been quite handy.

I posted regarding something else on LinkedIn today where I pointed out that the reason why many companies have blanket bans on outside IR35 contracts is because management can't trust their staff not to be idiots.

This seems like a prime example where the client needs to implement a similar rule just to protect themselves.

[David71]

You previously mentioned paystream doing the review, why did you use QDOS as they could only sanity check the contract, they wouldn't know the business processes (as you found out).

And post April 2021 the contract is really completely irrelevant.

Paystream do the review of working practices 4 weeks into the contract to ensure the actual working practices match the clients original SDS - if they don't then the contract would be switched to inside IR35.

[eek]

Quick update.
Took the role, the idea of running two clients at once (this wasn't hidden from the agency) plus a positive IR35 QDOS contract review, swung it for me.
Agent reiterated many times the role was outside IR35.
Started last week, spent the first couple of days remotely filling in forms, 'onboarding' etc. followed by a site visit later in the week.

• First 'oddness'; during 'Onboarding' being offered 'home working equipment' if I needed - monitors, keyboards etc. I mentioned I was a contractor and I'd buy anything I needed myself.....they repeated that I was welcome 'to order anything I needed' from their 'stores'
• Next 'oddness'; being 'invited' to daily, morning, team meetings with an expectation of attendance.....hmmmm....but I'm not a member of your 'team'.....and I can work whatever hours I like (according to my contract) and I really don't do mornings.....
• Followed by; 'we're in the office twice a week at least'...with an expectation so would I.....hmmmm.. that's a bit different to 'occasional site visits' and the contractual 'Work from anywhere you want'
• And then the biggie! 'Here's your corporate branded polo shirt'....Me: I'd rather not thank you.....P.M. 'But you must!'

Well, that was a nice few days of running two clients at once. Back to just the one now

On a positive note, I'll get paid for the 3 days I invoiced with no issue (no £££ in the bank yet, but recieved the invoice approval today).

You previously mentioned paystream doing the review, why did you use QDOS as they could only sanity check the contract, they wouldn't know the business processes (as you found out).

And post April 2021 the contract is really completely irrelevant.

[ladymuck]

It sounds like whoever did the SDS was either an idiot or not connected to the people you were going to be working with so they had their expectations and the SDS filler-inner had theirs and never the twain shall meet.

What a shame for you, that would have been quite handy.

[David71]

Did you get an SDS from the client/agent?

This is the kind of situation that shows self filling in IR35 questions is pointless.

Yep; SDS supplied. Working practices etc. all as expected for an Outside contract.

Agent was livid with the client when we spoke, he nearly had a stroke when tallking about me being given a client branded polo shirt!

Thing that did annoy me, and I think the agent, is that this will make a great little gig for someone as long as it has the correct IR35 determination but because it wasn't, everyone's time has just been wasted.

[jamesbrown]

Agent reiterated many times the role was outside IR35

About that bridge...

[northernladuk]

Did you get an SDS from the client/agent?

This is the kind of situation that shows self filling in IR35 questions is pointless.

[David71]

Quick update.
Took the role, the idea of running two clients at once (this wasn't hidden from the agency) plus a positive IR35 QDOS contract review, swung it for me.
Agent reiterated many times the role was outside IR35.
Started last week, spent the first couple of days remotely filling in forms, 'onboarding' etc. followed by a site visit later in the week.

• First 'oddness'; during 'Onboarding' being offered 'home working equipment' if I needed - monitors, keyboards etc. I mentioned I was a contractor and I'd buy anything I needed myself.....they repeated that I was welcome 'to order anything I needed' from their 'stores'
• Next 'oddness'; being 'invited' to daily, morning, team meetings with an expectation of attendance.....hmmmm....but I'm not a member of your 'team'.....and I can work whatever hours I like (according to my contract) and I really don't do mornings.....
• Followed by; 'we're in the office twice a week at least'...with an expectation so would I.....hmmmm.. that's a bit different to 'occasional site visits' and the contractual 'Work from anywhere you want'
• And then the biggie! 'Here's your corporate branded polo shirt'....Me: I'd rather not thank you.....P.M. 'But you must!'

Well, that was a nice few days of running two clients at once. Back to just the one now

On a positive note, I'll get paid for the 3 days I invoiced with no issue (no £££ in the bank yet, but recieved the invoice approval today).

[malvolio]

That depends very much on the industry and your specialism. If it's a small, niche community then it could be worthwhile. If you thought highly of the PM then you could just send a note saying thanks for giving me the opportunity and you're sorry it didn't work out but sadly contractual terms were not favourable on this occasion. If they care, they may ask for more info but don't be surprised if you hear nothing back. Sending war and peace will do you no favours.

What you have to remember is that the client doesn't really care about the terms you have with the agent / umbrella as the whole point of passing on the work to them is to avoid doing it themselves. The overarching contract they have with the agency may well include clauses that cover this indemnity and they've been sold that as a benefit of working with the agency.

I'm often in two minds over whether to drag the client into this and you'll get varying opinions from the collective.

Yes, I agree. I have only rarely dropped an application for a role because of the agency being stupid but have always emailed the hiring manager to apologise for the agency preventing me from joining the team just in case there is something to be gained from it. Never had a response, so I guess not!

[eek]

That depends very much on the industry and your specialism. If it's a small, niche community then it could be worthwhile. If you thought highly of the PM then you could just send a note saying thanks for giving me the opportunity and you're sorry it didn't work out but sadly contractual terms were not favourable on this occasion. If they care, they may ask for more info but don't be surprised if you hear nothing back. Sending war and peace will do you no favours.

What you have to remember is that the client doesn't really care about the terms you have with the agent / umbrella as the whole point of passing on the work to them is to avoid doing it themselves. The overarching contract they have with the agency may well include clauses that cover this indemnity and they've been sold that as a benefit of working with the agency.

I'm often in two minds over whether to drag the client into this and you'll get varying opinions from the collective.

My viewpoint would always be to apologise because you never know if you may encounter them again - but don't go into details, just say there are issues in the contract that can't be resolved.

[Lance]

One thing, I want to let the client know the reason I withdraw as I don't want to get a rep for accepting a gig then backing out - think it's alright to email the client Project Manager directly to explain?

you haven't accepted anything until you've signed the contract.

[ladymuck]

One thing, I want to let the client know the reason I withdraw as I don't want to get a rep for accepting a gig then backing out - think it's alright to email the client Project Manager directly to explain?

That depends very much on the industry and your specialism. If it's a small, niche community then it could be worthwhile. If you thought highly of the PM then you could just send a note saying thanks for giving me the opportunity and you're sorry it didn't work out but sadly contractual terms were not favourable on this occasion. If they care, they may ask for more info but don't be surprised if you hear nothing back. Sending war and peace will do you no favours.

What you have to remember is that the client doesn't really care about the terms you have with the agent / umbrella as the whole point of passing on the work to them is to avoid doing it themselves. The overarching contract they have with the agency may well include clauses that cover this indemnity and they've been sold that as a benefit of working with the agency.

I'm often in two minds over whether to drag the client into this and you'll get varying opinions from the collective.

[David71]

Cheers all for the advice.

Not sure what to do yet - I don't 'need' this gig as I've already got one on the go and have got two potential other contracts simmering.

I think the Lance is right that "may seek to recover from" is quite important but I'm a bit annoyed at the agency for not even wanting to discuss the clause and point blank refusing to change anything in their contract - their attitude is that 'this is the contract we use for all Outside IR35 contracts and it's not being changed'. I've had plenty of small changes made to contracts over the years so this is a first for me.

I'm going to see what QDOS come back with and have a further look at the Paystream 'indemnity' but have a feeling I'll be not taking this one on.

One thing, I want to let the client know the reason I withdraw as I don't want to get a rep for accepting a gig then backing out - think it's alright to email the client Project Manager directly to explain?

[eek]

All

Just got offered a Me-->Agency-->End Client contract and have been looking through the Me-->Agency contract quite closely. FYI: contract is with QDOS at the mo for a full review.

The IR35 SDS from the client states Outside IR35 .... but.... there's a clause in the contract which states:

In the event at any time during the Project Period a determination is made by the Client, HMRC or any third party that the Contractor is operating within IR35, the Company may seek to recover from the Contractor such PAYE, Income Tax and National Insurance Contributions as calculated by the Company in respect to Fees previously paid to the Company for the Project and shall deduct PAYE, Income Tax and National Insurance contributions in respect to any further Fees paid following such determination save that the Company may at its absolute discretion terminate this agreement with immediate effect in accordance with clause 6.1.6.

Now I don't mind being liable for any FUTURE inside taxes etc. if the status is changed by the client or HMRC but I don't want to be liable for any previously paid fees if the status change is backdated.

I've told the agency that if the clause stays, I don't.

I know this whole area has recently been discussed in another post so am not looking to go over old ground but I had a call from the agent who has told me this clause has been queried by other contractors before me and their compliance director refuses to move it. The agent then went on to say that I'll have a working practises review after 4 weeks (which will cost me £150 but there we are) and that if Paystream (the review company) declare that I am Outside IR35 then they will 'indemnify' me against any future claims due to IR35 status changes.

I'm going to give Paystream a call tomorrow to find out what this 'indemnification' involves, but I was wondering if anyone on here has any experience of, or info about, IR35 indemnities?

Cheers

Do Paystream do IR35 reviews as Ive never seen them advertise or mention the fact.

SJD (Ai) WTT (human), Qdos (human) and even Dave Chaplin (Ai) I would trust but I've never even heard of Paystream doing such a thing.

Personally I would be walking if that clause isn't removed, how would an umbrella firm indemnify you and why should you be paying for something that post April 2021 is completely outside our control.

What notice period do you have as if it's 1 or 2 weeks you could just keep hunting and quit before the month is out.

Finally, given the way HMRC have treated the home office and DWP I would be very wary of anything that passes things up the chain back to you.

[northernladuk]

I assume the client/agent has issued and SDS saying the gig is outside?