Reply to: Hays contracts and IR35

[EllyAu]

Cheers will see what they say.

Hi, any luck with your Hays contract?

I just got a contract through them and it still says the same thing about substitution clause

I wonder if I should try to negotiate with them or is it all in vain?

[Qdos Contractor]

The substitution clause isn't the only problem with it by the way. It's badly written from an IR35 perspective all round.

[Qdos Contractor]

Remove reference to 'sole discretion' entirely. One look at that and HMRC will be laughing.

Sadly the chances of any changes being made are slim - Hays are painfully obstinate. If you manage it I'll eat all of my hats.

[Bumfluff]

add that "the substitution shall not be unreasonably denied".

Cheers will see what they say.

[Fred Bloggs]

add that "the substitution shall not be unreasonably denied".

[Bumfluff]

I haven't seen the HIT20 contract for a little while actually. Other versions are very similar though - look out for the dodgy substitution clause in 3.5 (replacement can be rejected in client's 'sole discretion').

I've just seen the contract and indeed it includes clause 3.5 and states 'The client and the employment busiverse reserve the right to refuse and proposed subsititution at there sole discretion'. Is that a no go-er then, should I get this reworded and get them to drop that statement ?

[DeeElvis]

I have had my HAYS contract reviewed before by B&C ... It failed!
B&C were unable to negotiate because HAYS refused to make amendments.

[Qdos Contractor]

Hi I've got a new gig that I got direct but the client wants me to go through there onsite agent which is Hays, is HIT20 still about ? I'm due to see the Hays guy tomorrow so I want to ask about it etc

I haven't seen the HIT20 contract for a little while actually. Other versions are very similar though - look out for the dodgy substitution clause in 3.5 (replacement can be rejected in client's 'sole discretion').

[Bumfluff]

I've done one gig via Hays IT. Working as my own ltd co. they had a standard form called I think a HIT20 put together by their lawyers and mine was IR35 compliant. They don't negotiate the content of a HIT20 due to 'legal costs' but they were prepared to negotiate my terms for overtime, etc. They are also the only EB that paid me within 4 working days of me faxing my timesheet and invoice - that's the fastest ever I've been paid.

Hi I've got a new gig that I got direct but the client wants me to go through there onsite agent which is Hays, is HIT20 still about ? I'm due to see the Hays guy tomorrow so I want to ask about it etc

[oracleslave]

This may be all heresy, but are you willing to take the risk?

Nope sounds like heresy to me, could just be hearsay though.

[Ardesco]

Do the IR still do their own contract-reviewing service? If so you could send it to them (using a false name and a PO box!). They'll probably say it's inside, & you'll then have a case to put to Hays; but if they say it's outside, jackpot.

NO NO NO NO NO!!!!

Never send it to HR for a review, they will come back saying you are IR35 caught 99% of the time, and will take 3-6 months to review it. You are then top of the list of people to perform an aspect investigation on.....

This may be all heresy, but are you willing to take the risk?

[mwoz03]

Thanks Bluebird, that was very helpful. Hence they were asking me to provide a name of someone who has been IR35 challenged, and who has got the HIT20 amended. Some postings mentioned the the Schedule is more IR35 friendly, I don't think mine is and what can I do to get proof to say the work practise is outside of IR35? thanks

[Bluebird]

I was with Hays a while back - wasn't happy with the HIT20, although the scedule was a bit more IR35 friendly.

The working practices were sound, and the guy I worked for understood IR35 and said he'd have no problmem in answering the questions "positvely" if hector came knocking.

I think it will take a IR3% case loss against a contractor on a Hays contract to make them change their mids, till then I think you have to hope you'll not be the test case....

[mwoz03]

Thanks, thunderlizard =)
In point 5 the Hays IT agreement is standard for everyone (the only detail it shows is my ltd company). Once I have signed it Hays will ask me to sign the Schedule which states my ltd company details, place of work, rates, contract duration, notice period, etc but I have to push to see a sample copy and I know not all details are in there..

I know the agent is getting a very good fee for this and I am not sure if I say I will leave the contract unless it is IR35 compliant will make any difference.

Do I need to be a PCG member to email them to find out how has successfully got Hays to amend agreement and who has problems and taken to court?

Thanks again

[thunderlizard]

1/ I read a posting that another candidate has managed to get the work through another agent, how can I find out what other agents are available? If I ask the client, my boss-to-be is also a contractor, do you think I will be seen as being difficult ?

No, he'll probably see you as being constructive, if you tell him why you're doing it. You're trying to find a way to help him out by taking on the work.

2/ What happens if the clauses are not changed? QDOS advises that if I am insured with them, they can present me in court but it would be a challenge and difficult to proof, if I am found guilty - what will be the worst case scenario?

I'd be surprised if you really can get insurance on a 'let's just wing it' basis. Worst case I suppose would be you have to pay the tax difference, plus criminal charge of tax evasion if it could be proved you had reason to believe you were inside IR35 but didn't pay up. IR35 is so vague though that that's unlikely. (I'm not an expert on the implications,to be fair)

3/ The agent told me that he might have to advice the client that I am not prepare to sign the contract and will start to look for a replacment.

Never be afraid to walk away. So you're not prepared to sign a commercially unsound contract? No shame in that.

4/ Does anyone know any HAYS IT contractors has been found guilty of IR35 (Not sure how to phrase this) and if so, how can I found out who they are so can so I can proof to HAYS IT that their contract is not IR35 complaint and so they have to change it?

Pass - but PCG is probably the best place to start. They might be able to pass your contact details onto someone who fits that description.
Do the IR still do their own contract-reviewing service? If so you could send it to them (using a false name and a PO box!). They'll probably say it's inside, & you'll then have a case to put to Hays; but if they say it's outside, jackpot.

5/ Is it true that 'if they have to change my contract then they have to change everyone's'?

Of course not. No such word as can't. They're free to do either. If they've got zillions of contractors on site and they really are all on identical contracts, I can see that it could genuinely be worth refusing changes to one in the interests of consistency - especially as they'd be on a tiny margin anyway. But I think that's a weak bluff. They'll have been supplying all sorts of contractors doing all sorts of things for years & there's no way it's completely consistent.