Reply to: Contract for service / Contract of service

[MyUserName]

Quite. Certain wannabees on here just don't seem to get this extraordinarily simple premise though.

I can only dream of eventually becoming a wannabee ...

[d000hg]

More than the nothing you'll get on the bench.

[suityou01]

If they are large then IR35 doesn't come into play.


I'd question that the reduction is "slight"

Quite. Certain wannabees on here just don't seem to get this extraordinarily simple premise though.

[DirtyDog]

But I have seen business to business contracts with large consultancies that explicitly name people as expected representatives. It cannot be that cut and dried.

If they are large then IR35 doesn't come into play.

Surely the worst case scenario is to operated inside IR35 and count the (slightly reduced) money?

I'd question that the reduction is "slight"

[suityou01]

Why are you still going back and forth on this? Even if you could convince the agency to change the terms in the contract, if they aren't reflected in the contract between agency/client then the changes are worthless.

If the client has an expectation of personal service, then fine. That in itself is not an IR35 failure however if as you say the rest of the contract is poor and is probably a reflection of working practices that would put you inside, then work inside IR35 or toss the contract.

WTCPS

[TheCyclingProgrammer]

I think you're missing the point. This is a business to business contract between my business and the agency. The end client has no business enforcing clauses in a contract that doesn't concern them. Their contract is with the agency, not MyCo.

Why are you still going back and forth on this? Even if you could convince the agency to change the terms in the contract, if they aren't reflected in the contract between agency/client then the changes are worthless.

If the client has an expectation of personal service, then fine. That in itself is not an IR35 failure however if as you say the rest of the contract is poor and is probably a reflection of working practices that would put you inside, then work inside IR35 or toss the contract.

Edit: and I wouldn't worry about notice periods; they can effectively drop you at any time by simply telling you there is no more work for you to do. This is a good thing as far as IR35 is concerned as it means you have an element of business risk that an employee would not have.

[suityou01]

Perhaps they are enforcing that contract thus forcing the agency to enforce certain clauses in theirs?

I'm all for risk mitigation in contracts, but there has to be negotiation.

They can give 2 weeks notice, I have to give 4. Why? It smacks of big company with big ego throwing their weight around.

It comes back to the plumber argument.

Dear City Plumbers,

Congratulations on Dave securing the role of chief radiator bleeder at Leviathon Egotrip and son.

Please could Dave report to his line manager at 9:30 on his first day.

Lunch is at 12 sharp, he has one hour.

Core hours are 9-5:30. Overtime must be agreed in writing by his line manager.

Dave must adhere to our strict plumbing practices, and we will monitor his work closely. We will supply all of his tools even if they are inferior.

Dave must bleed at least 5 radiators per day.

We will micro manage Dave as much as possible.

Btw he's not entitled to any sick pay, or holiday pay or any rights whatsoever. It's our policy to only hire the most accomodating of fawning lickspittles that do whatever we tell them to do. This way we get all the benefits of obedient temporary staff without any of the responsibility.

Yours faithfully

Sloping shouldered HR bod.

[d000hg]

I think you're missing the point. This is a business to business contract between my business and the agency. The end client has no business enforcing clauses in a contract that doesn't concern them. Their contract is with the agency, not MyCo.

It's entirely normal in the business world for a company to stipulate in a contract with a supplier that the supplier must abide by certain rules when contracting suppliers of its own.

I don't see how this is missing the point. The point is that you have a contract on the table which fails IR35. Whose fault that is seems rather besides the point.

[doodab]

I think you're missing the point. This is a business to business contract between my business and the agency. The end client has no business enforcing clauses in a contract that doesn't concern them. Their contract is with the agency, not MyCo.

Perhaps they are enforcing that contract thus forcing the agency to enforce certain clauses in theirs?

[suityou01]

Isn't the rate good enough that just paying IR35 would still leave a decent take-home? IIRC you said it was £50/day more than you were getting before, which was already a fairly healthy rate?

I think you're missing the point. This is a business to business contract between my business and the agency. The end client has no business enforcing clauses in a contract that doesn't concern them. Their contract is with the agency, not MyCo.

[d000hg]

Hi,

I've not done this. The current roadblock is that the client is enforcing quite a few of the failed clauses and won't budge. In effect this means there are 1000s of contractors all sitting on an IR35 failed contract. If Hector cottens on, this could be pretty big.

Thanks

Isn't the rate good enough that just paying IR35 would still leave a decent take-home? IIRC you said it was £50/day more than you were getting before, which was already a fairly healthy rate?

[MyUserName]

Officially you are correct. IANAL, but it seems pretty clear to me when the main contract wording stipulates the schedule forms part of the contract, then it's part of the contract.

If it says representitive = Suity, then that explicitly names me.

But I have seen business to business contracts with large consultancies that explicitly name people as expected representatives. It cannot be that cut and dried.

Surely the worst case scenario is to operated inside IR35 and count the (slightly reduced) money?

[DirtyDog]

Hi,

I've not done this. The current roadblock is that the client is enforcing quite a few of the failed clauses and won't budge. In effect this means there are 1000s of contractors all sitting on an IR35 failed contract. If Hector cottens on, this could be pretty big.

Thanks

Look on the bright side - if you ever get an enquiry, see if you can point them to this shower where the potential for a decent gain is big

[suityou01]

Given the Schedule extends/overrides the Contract, does that really make a difference? You are still contracting a named individual.

Anyone know an official answer to this one?

Officially you are correct. IANAL, but it seems pretty clear to me when the main contract wording stipulates the schedule forms part of the contract, then it's part of the contract.

If it says representitive = Suity, then that explicitly names me.

[suityou01]

You may have done this already, but it would be worth having another chat with whichever consultant reviewed your contract. Remember we can speak to the agency directly and it might be that we've dealt with them in the past.

We can also check over any changes that have already been made; they might have pushed it over the line.

Hi,

I've not done this. The current roadblock is that the client is enforcing quite a few of the failed clauses and won't budge. In effect this means there are 1000s of contractors all sitting on an IR35 failed contract. If Hector cottens on, this could be pretty big.

Thanks