On retainer

[LisaContractorUmbrella]

Hi Lisa,

I bumped an old thread to ask my question, and seeing as I am not UK based I am not affected by IR35 and the like. Have you ever negotiated a retainer yourself? If so, I would be interested in hearing how you've approached the matter.. It seems a bit akward asking to be paid when there's no actual work to be done, but then again that also happens occasionally within contracts when they have not been officially terminated, especially in my area (testing)..

As your contract has actually been terminated that would suggest that there is no guarantee that the project will be resurrected so I would think that it is unlikely the company would pay you a retainer whilst they decide whether or not to go ahead. However, in this situation I would suggest that you don't have much to lose; if it were me I would say how happy I had been working with them and how much I look forward to returning but, if they wan't to guarantee my return, would they be prepared to negotiate a retainer as I would suffer financial loss to ensure exclusivity. The worst they can say is 'no thanks'.

[XperTest]

Hi Lisa,

I bumped an old thread to ask my question, and seeing as I am not UK based I am not affected by IR35 and the like. Have you ever negotiated a retainer yourself? If so, I would be interested in hearing how you've approached the matter.. It seems a bit akward asking to be paid when there's no actual work to be done, but then again that also happens occasionally within contracts when they have not been officially terminated, especially in my area (testing)..

[LisaContractorUmbrella]

NotSoWise is right - HMR&C consider that payment of a retainer or payment between assignments is an indicator of a global employment contract. They base this on case law (Clark v Oxfordshire Health Authority) and also on the comments of Sir Christopher Slade:

“I would, for my part, accept that the mutual obligations required to found a global contract of employment need not necessarily and in every case consist of obligations to provide and perform work. To take one obvious example, an obligation by the one party to accept and do work if offered and an obligation on the other party to pay a retainer during such periods as work was not offered would in my opinion, be likely to suffice.”

Whether or not payment of a retainer would be likely to influence an IR35 case remains to be seen but if there were other indicators of employment, however small, I would be inclined to think that it would.

[XperTest]

Has anybody here ever been on a retainer? I find myself in a rather unusual circumstance where 35 out of 40 of the project staff on the project I was working on have had their contracts terminated due to the customer reconsidering their approach towards the project outcome and the selected technical solution. Unfortunately, I am one of those 35; being the test manager on the project they don't expect there to be any testing to be done for the next two months while they make up their minds.

The good news is they have been happy with my contribution so far, and have asked me to consider rejoining the project when they know which way to go, which they expect to be in about one to two months. I have told them I am currently already looking for a new contract as they have terminated my contract, so there is every chance that I will not be available when they come calling. They then stressed again it would be great if I could only accept short term work or keep myself available. I have been thinking about asking them a retainer. I am perfectly happy with doing some courses and have plenty of stuff that needs doing in and around the house, plus I wouldn't mind a little break after nearly two years of working non stop, but I don't want to stop looking for contracts without a commitment from their side.

Has anybody ever negotiated a retainer in a similar situation? What would be a reasonable proposal. I was thinking going in at 50% of my normal rate, would that be reasonable, or too little/too high?

P.S. I am not in the UK, so no IR35 implications...

[Not So Wise]

Why would a retainer imply IR35 problems? If I retain a lawyer he's not my employee. If I pay a network maintence company monthly to ensure they will be on call in the event of a problem, they are not my employees

Under the "Mutuality of obligation" clauses, basically a retainer under these circumstances ("Sit and take money until we are ready for you to start full time") can imply (under some interpretations) some obligation to come to work for them them when they are ready for the contractor, which would be different from normal support contracts, which are the examples you give

Normal "retainer for support" would not have IR35 implications, but scenario he describes is not that, thus why he should look into the implications (aka talk to lawyer)

[d000hg]

Why would a retainer imply IR35 problems? If I retain a lawyer he's not my employee. If I pay a network maintence company monthly to ensure they will be on call in the event of a problem, they are not my employees...

[MPwannadecentincome]

How often do retainers get used and typically what conditions are applied to them? I've got a potential part time gig and the guy mentioned putting me on a retainer, not sure why really!

[GCR99]

Quick question...

Does anyone have experience of being paid a retainer when on a gig?

I have a 'window' in my new contract ext. and am asking for a retainer. I know the ultimate client wants me but I don't fancy a few weeks effectively on the bench until they do.

Any thoughts?

had a contract 10 years ago, we all turned up and they sent us home for about a week as they hadnt sorted desk space or equipment. We told the PM as we left "the meter's running mate". They agreed to pay us while we sat on our arses at home. Nice

[Not So Wise]

If you can get go for it, though make sure the T&C's and limits are well defined, you don't want to held in limbo forever and unable to take up new contracts

Would also look into IR35 implications if you currently view yourself as "outside" as could see something like this putting you "inside"

[PaulCD]

Quick question...

Does anyone have experience of being paid a retainer when on a gig?

I have a 'window' in my new contract ext. and am asking for a retainer. I know the ultimate client wants me but I don't fancy a few weeks effectively on the bench until they do.

Any thoughts?