Reply to: IR35 friendlieness at renewal

[tim123]

So they can insist on checking references if the end client requires a security cleared individual, or somebody with a specific qualification.

Yeah,

And how often does that apply?

Most clients are just looking for "proficiency in (language/operating system/whatever else)"

tim

[Ardesco]

No they dont have to check your references. They have to check that you are capable of doing the job.

Checking references is not the only way, and probably not even the easiest way, to do this. But they tell you that it is required, as it is the one thing most likely to make you decide to opt out.

tim

Regulation 22(1) and (2) provides that before an agency or employment
business supplies or introduces a work-seeker to a hirer, it must ensure
that:
(a) where that work-seeker is required by law or any
professional body to have qualifications or authorisation to
work in the position in question; and
(b&c) where the work-seeker will be taking up a position which
involves working with or caring for any person(s) under the
age of eighteen, the elderly, infirm or anyone in need of
care and attention;
in addition to having satisfied the requirements in regulations 18 – 21, the
agency or employment business has, in accordance with regulation
22(2), also obtained:
22
(a) copies of any relevant qualifications or authorisations that
the work-seeker needs to work in the position in question
and offered copies of these to the hirer;
(b) two references from persons not related to the work-seeker,
where those persons have agreed that the agency or
employment business can disclose their references to the
hirer, and it has offered to provide copies of the references
in question to the hirer; and
(c) confirmation that the work-seeker is not unsuitable to work
with vulnerable persons. The agency or employment
business is obliged to take reasonably practicable steps to
obtain such confirmation.

So they can insist on checking references if the end client requires a security cleared individual, or somebody with a specific qualification.

[TheFaQQer]

Some sound advise, so thank you.

The contract is being reviewed by an expert, but this will take a few days.

As such, I am debating whether to advise the agent that I will not start until this is done which will probably be after the Easter break.

To complicate matters, I was introduced to the client prior to any discussions regarding opt in/out.

Hence, am I correct in assuming even if I do get the contract checked and it is IR35 friendly or is subsequently amended to be so, the fact that I am automatically opted in makes all of the above 'irrelevant'.

If I do decide to postpone my start, what would be the best way to tackle this with the agent?

TIA

Most people can review the contracts quicker if you pay them some money. If you need it quickly, then see how much an expedited service will cost.

If you ask the agent to make changes, then they may or may not do that. Some I've dealt with in the past have said "that's the offer - take it or leave it" and then been surprised and backtracked when I've said "OK, I'll leave it then". If you can take the risk that you may end up with nothing, then I would tell the agency that you are having the contract reviewed, and cannot be on site until you have a contract that you are happy with. If they had got the paperwork to you sooner, then it would all be different.....

As already suggested, I tell the EB that I won't be onsite without a contract as I wouldn't be insured. If you can mention that to the client as well, then they won't want you there uninsured and will put pressure on the EB to sort everything out with you.

[tim123]

The agency also has to verify that your resume is not a pack of lies and they have to check your references.
.

No they dont have to check your references. They have to check that you are capable of doing the job.

Checking references is not the only way, and probably not even the easiest way, to do this. But they tell you that it is required, as it is the one thing most likely to make you decide to opt out.

tim

[Ardesco]

Some sound advise, so thank you.

The contract is being reviewed by an expert, but this will take a few days.

As such, I am debating whether to advise the agent that I will not start until this is done which will probably be after the Easter break.

To complicate matters, I was introduced to the client prior to any discussions regarding opt in/out.

Hence, am I correct in assuming even if I do get the contract checked and it is IR35 friendly or is subsequently amended to be so, the fact that I am automatically opted in makes all of the above 'irrelevant'.

If I do decide to postpone my start, what would be the best way to tackle this with the agent?

TIA

Opt In/Opt Out has nothing to do with IR35, agents try to make out that it does because it adds to their administrative burden and prevents them from putting handcuff clauses on you.

Opt In is the way to be, if you are opted in the agency has to pay you money in a set period of time, they also cannot put a handcuff clause on you that prevents you from going direct with you client. The agency also has to verify that your resume is not a pack of lies and they have to check your references.

As agencies don't like any of the above they tell you that you need to opt out to be IR35 compliant which is a load of old balls.

[Turion]

Considering it is his first contract I think getting that first contract under your belt and on your CV is more important than milking the contract for the extra money. I presume even if it is caught by IR35 it is still a better deal then your perm setup.

The above statement is sound advice. Opt-out stuff is the irrelevent to a ltd co contractor. Each day you delay starting will cost you money and most probably the contract as the agent will just find someone else. If you're already benched could be very costly. Agent won't necessarily accept any changes you want, so could be more wasted money. Use it or lose it!

[tim123]

If you are concerned about IR35 you need to get the contract reviewed for by an expert before doing anythingelse. What you 'think' is not good enough. Personally for a 2 month contract I'd just take it as is. Do you want the work or not?

That's exactly right: Do you want (this particular) work, or not?

If you do then sign, if not negotiate.

tim

[KevinS]

To complicate matters, I was introduced to the client prior to any discussions regarding opt in/out.

Hence, am I correct in assuming even if I do get the contract checked and it is IR35 friendly or is subsequently amended to be so, the fact that I am automatically opted in makes all of the above 'irrelevant'.

If I do decide to postpone my start, what would be the best way to tackle this with the agent?

TIA

No, opted in does not make IR35 friendly contracts/working practices irrelevant. There are some (agents mostly) that believe being opted in means you are automatically caught by IR35, but this is not the case.

As for the later start date, explain to the agent that your business insurance does not cover you until after the contract is signed and you are not comfortable being at the client site without insurance..

[Hicks]

Some sound advise, so thank you.

The contract is being reviewed by an expert, but this will take a few days.

As such, I am debating whether to advise the agent that I will not start until this is done which will probably be after the Easter break.

To complicate matters, I was introduced to the client prior to any discussions regarding opt in/out.

Hence, am I correct in assuming even if I do get the contract checked and it is IR35 friendly or is subsequently amended to be so, the fact that I am automatically opted in makes all of the above 'irrelevant'.

If I do decide to postpone my start, what would be the best way to tackle this with the agent?

TIA

[dx4100]

The contract is a rolling one which means there is a high probability of it being renewed. I wouldn't take it if it fell within IR35.

Considering it is his first contract I think getting that first contract under your belt and on your CV is more important than milking the contract for the extra money. I presume even if it is caught by IR35 it is still a better deal then your perm setup.

[SueEllen]

If you are concerned about IR35 you need to get the contract reviewed for by an expert before doing anythingelse. What you 'think' is not good enough. Personally for a 2 month contract I'd just take it as is. Do you want the work or not?

The contract is a rolling one which means there is a high probability of it being renewed. I wouldn't take it if it fell within IR35.

[TheFaQQer]

I would get it sorted from the outset.

From the point of the HMRC what is more likely to flag up as a good place to start an investigation?

A contractor who has always been outside IR35?

Or a contractor who was IR35 caught and then decided to stop paying it at renewal even though he is working at the same place and doing the same job?

I know who I would go after......

WHS - remember that the contract is only part of the story, and working practices are key as well. Having an IR35 friendly contract, but IR35 unfriendly working practices will still mean you are in trouble if you are investigated.

Not that Hector applies logic anywhere, but I know who I'd target too.

[Turion]

If you are concerned about IR35 you need to get the contract reviewed for by an expert before doing anythingelse. What you 'think' is not good enough. Personally for a 2 month contract I'd just take it as is. Do you want the work or not?

[Sockpuppet]

Unfortunately, I do not have much time as I will be away for the next few days and start the day after I return next week.

Don't let pimps play on this.

I've asked for an extension (the client didn't even know my contract as expiring).

Asked for a 10% rate rise (well 20% expecting to get 10%).

They are stalling hoping that I will sign and not get the contract checked due to the rush nature of it. It'll be a ******* shock when I don't show for work when the contract isn't signed then.

[Ardesco]

I would get it sorted from the outset.

From the point of the HMRC what is more likely to flag up as a good place to start an investigation?

A contractor who has always been outside IR35?

Or a contractor who was IR35 caught and then decided to stop paying it at renewal even though he is working at the same place and doing the same job?

I know who I would go after......