Reply to: Have been offered an NHS role but offered an extension in current private sector role

[centurian]

To be honest, there could be a silver lining in this.

You could have a point there. Another silver lining is that if you are able to convince ClientCo that IR35 shouldn't apply to you, it might give you an extra shield against any IR35 investigation. It wouldn't be a silver bullet - it may be easier to convince a procurement/finance bod at ClientCo than an HMRC status inspector. But it is quite a defence to point out that the ClientCo is applying the rules that their boss at the Treasury told them to do.

[BoredBloke]

To be honest, there could be a silver lining in this. Up to now agents and the client have not been interested in IR35 because there was no downside to them - if a contractor is caught the financial penalty falls on them and only them. Now there is. While the financial fall out will still hit the contractor, if the chances of that happening are increased, then its going to be harder to place contractors. Agencies who deal with the public sector will see a drop in income as their source of contractors dries up. So it will be in their interests to ensure that the contractors they place are outside IR35. From the clients perspective they are not going to want to have to change and rerecruit conctractors every 26 weeks, so again they will be more open to contracts that ensure that contractors are outside IR35. The status quo isn't an option. Only a small silver lining!!

[Sausage Surprise]

For those interested I binned the NHS gig. The agent was mighty miffed when I explained why, but he must have come up against this already as he started giving me some guff about how you could make yourself definitely outside IR35

[d000hg]

Maybe they'll start letting sole traders in and avoid the whole sorry mess. How does that stack up take-home-wise compared to IR35-caught?

[eek]

Maybe I'm completely wrong about this, but unless you can show some actual case law supporting your point, rather than how you feel the law should operate, you're barking up the wrong tree here.

+1. You have a ****ly written Government policy and risk adverse (slight understatement) and vindictive public sector management. The only thing that will happen is they will ask for confirmation of IR35 compliance and either accept it or bin you.

To be honest I reckon many places will simply bin all contractors after 6 months regardless of their status. that's the easiest way to comply with the rules. Especially as those who will care about meeting this objective (top level management) won't care about the consequences of it.

Why can I see the larger consultancies doing well out of this change?

[centurian]

Yes, until a gaggle of people take the issue to court and companies have to stop putting it in the contract.

Well firstly we are assuming that those clauses are not legal in the first place - and I do not believe that to be the case. Clauses to inspect supplier's accounts are not completely unheard of in a B2B arrangment.

But let's just assume for one moment that an inspection/assurance clause might not be legal. Can you see a slew of contractors queuing at the doors of courts, ready to slap down 10K as a bet to what would be, at absolute best, a 50/50 shot to get a clause removed.

And even if you were successful, the cancellation clause would still be legal. They could still issue notice the following day - or even if you had scared them sufficiently with your court action - simply not offer you a renewal.


Maybe I'm completely wrong about this, but unless you can show some actual case law supporting your point, rather than how you feel the law should operate, you're barking up the wrong tree here.

[d000hg]

Yes, until a gaggle of people take the issue to court and companies have to stop putting it in the contract.

[centurian]

A B2B contract might allow all kinds of crazy things but they don't view us as real businesses, and an employment contract CAN'T be unfair to the employee.

Even B2B, we don't live in an unregulated capitalist society where a company can stipulate anything it wants.

How they view us will be irrelevant. It's the contract that counts. If it is an employment contract (or you can argue that it is), then yes, there will be all sorts of safeguards. But then you will be completely and utterly slam dunk IR35-caught, which kind of defeats the object of opposing this change.

B2B contracts have considerably more lattitude.

But even if a specific clause is deemed to be unenforeable - general contract law is that the other legal clauses still hold true. And if you have signed a contract where ClientCo has the right to cancel the contract by issuing a stated notice, then you have no legal recourse if they issue that notice correctly.

Here's how the conversation will go.

ClientCo: We want to inspect your accounts under clause 14 of the contract.
d000hg: I don't think that clause is legal. You can't force me to show my the accounts.
ClientCo: Mmmmm. We have checked and you are absolutely right. We cannot enforce clause 14.
ClientCo: (2 mins later) - Clause 15 allows us to terminate the contract with 4 weeks notice. We hereby invoke clause 15, effective today.
ClientCo: (2 mins after that) - Clause 16 means we don't have to provide you any work, or pay you. As of today, we have no work for you. Please close the door behind you.

[d000hg]

But that doesn't make it illegal.

Remember they can cancel your contract for virtually any reason - that's the whole point of why they take on contractors. They can cancel your contract because they don't like the colour of your shoes, so they can certainly cancel your contract because they are not satisfied with assurances of your tax structures.

Think about it - how could you have any regress. You can't take them to an industrial tribunal. You can only sue them as a B2B entity for breach of contract - but if the contract says they can unconditionally issue cancellation notice whenever they like - they are not in breach of any clauses.

A B2B contract might allow all kinds of crazy things but they don't view us as real businesses, and an employment contract CAN'T be unfair to the employee.

Even B2B, we don't live in an unregulated capitalist society where a company can stipulate anything it wants.

[cojak]

I've already blown out an agent emailing me for an NHS contract - they are desperately trying to reassure contractors with a bag of smoke and a box of mirrors.

[bluetoaster]

Translation: Our opinion that the guideliness won't apply the NHS is pure wishful thinking, because if it does apply, we're screwed.

to be honest that is the view I get from my agent, who also specialises in suplying the NHS. He got his accountant to give me a call and what I got was that he can't see it happening in the next 10 to 15 years. I view that as wishful thinking.

[centurian]

This chap seems to think the guidelines won't apply to the NHS

<snip?

Although...

We only supply the NHS, no one else

Translation: Our opinion that the guideliness won't apply the NHS is pure wishful thinking, because if it does apply, we're screwed.

[centurian]

...which is none of their business.

But that doesn't make it illegal.

Remember they can cancel your contract for virtually any reason - that's the whole point of why they take on contractors. They can cancel your contract because they don't like the colour of your shoes, so they can certainly cancel your contract because they are not satisfied with assurances of your tax structures.

Think about it - how could you have any regress. You can't take them to an industrial tribunal. You can only sue them as a B2B entity for breach of contract - but if the contract says they can unconditionally issue cancellation notice whenever they like - they are not in breach of any clauses.

[kingcook]

If it was worded like that, then it probably wouldn't be legal.

But it's not - they are inserting clauses which enable them to enquire as to the tax/NI structure you are using.

...which is none of their business.

What clauses will come next? Clauses to ensure that you're not spending too much of your money on drink or drugs? To ensure that you don't spend any of it on call girls?

[centurian]

But how can a contract stipulate what tax is payable? Is that a legal clause - if unfair notice periods, etc, are not then this seems even more 1-sided.

If it was worded like that, then it probably wouldn't be legal.

But it's not - they are inserting clauses which enable them to enquire as to the tax/NI structure you are using. If you resist/refuse, or they don't like what they see, then they will just cancel the contract using whatever cancellation clause is in the contract anyway.

So to flip your question around - why wouldn't that be legal.