Reply to: QDOS say Hyphen contract is IR35 fail - anyone managed to get Hyphen to amend?

[Casablanca]

further update

The amended contract was considered an IR35 pass by QDOS.

[malvolio]

Go back to Dragonfly. The judge there was allowed to ignore the mismatch between upper and lower contracts. I said at the time that someone should have appealed that decision;it is a fundamental principle of contract law that you can't be bound by clauses you know nothing about. The opt out should not be embedded in the contract either.

Hyphen have history here, they are not in the least bit interested in acting ethically. Unless you really need the work, walk away and make sure your ex-client knows why.

[TheCyclingProgrammer]

If you can't get the contract amended to include an unfettered RoS clause that is more than a mere sham, then not all is lost. Whilst a genuine RoS is pretty much a surefire way of fighting off an IR35 investigation, you can still be outside without it if you can clearly show a lack of MOO and/or D&C. It might be easier to cover your bases with these rather than try and get a RoS clause inserted that probably wouldn't be honoured anyway.

[northernladuk]

Having a sham clause in the contract which says there is no right of substitution when the client would in reality accept one wouldn't help your situation, either.

Get the best contract you can and try as hard as possible to make the reality reflect the wording. In the event of an IR35 investigation, I'd rather have a friendly contract which HMRC have to prove is a sham than a dodgy contract (which has already been rejected by an expert) that I then have to prove doesn't match the reality.

Indeed. I think the devil is in the details with this one. Depends on exactly what clauses failed and what the wording of the quick fix is.

[TheFaQQer]

Hmm, I don't really like the sound of that. Just altering wording to get past a review isn't going to help anyone, particularly if that extra wording doesn't match the reality of the situation. Having sham clauses in is going to cause more of a headache than solve anything surely?

Having a sham clause in the contract which says there is no right of substitution when the client would in reality accept one wouldn't help your situation, either.

Get the best contract you can and try as hard as possible to make the reality reflect the wording. In the event of an IR35 investigation, I'd rather have a friendly contract which HMRC have to prove is a sham than a dodgy contract (which has already been rejected by an expert) that I then have to prove doesn't match the reality.

[northernladuk]

Hyphen have replied that they have a "QDOS specific addendum" which will be added to my contract by COB today. I am interested to see what that says. I presume it has been drafted in response to other people's contract reviews

Hmm, I don't really like the sound of that. Just altering wording to get past a review isn't going to help anyone, particularly if that extra wording doesn't match the reality of the situation. Having sham clauses in is going to cause more of a headache than solve anything surely?

[SpontaneousOrder]

Spoke with brother at the weekend. He runs the account with one of the big IBs and said that their contracts reflect the clients', and that in their case there's just an opt out check-box at the bottom of the contract.

[speling bee]

Makes you wonder why they don't include it by standard.

Add a Hyphen surcharge.

[TheFaQQer]

Hyphen have replied that they have a "QDOS specific addendum" which will be added to my contract by COB today. I am interested to see what that says. I presume it has been drafted in response to other people's contract reviews

Makes you wonder why they don't include it by standard.

[Casablanca]

update

Hyphen have replied that they have a "QDOS specific addendum" which will be added to my contract by COB today. I am interested to see what that says. I presume it has been drafted in response to other people's contract reviews

[speling bee]

True. The client won't want to lose their chosen contractor and the agent won't want to lose their commission. It does beg the question why opt-out and then withdraw at the last minute, instead of negotiating the contract terms appropriately.

OK I can see how that is one tactic, but it could backfire too.

If Hyphen are unwilling to negotiate, this may be the only way.

[Contreras]

As long as the client is dumb it is within your right to tell them what's going on and explain the advantages to them of not opting-out.

But your foot is in the client's door so you have the upper hand.

True. The client won't want to lose their chosen contractor and the agent won't want to lose their commission. It does beg the question why opt-out and then withdraw at the last minute, instead of negotiating the contract terms appropriately.

OK I can see how that is one tactic, but it could backfire too.

[speling bee]

Does it? I thought the opt-out agreement lasts for the duration of any subsequent contract. You can withdraw your agreement to the opt-out at any time but then the agency is within rights to cancel the contract and offer to renew with the opt-in version (or not at all).

But your foot is in the client's door so you have the upper hand.

[SueEllen]

Does it? I thought the opt-out agreement lasts for the duration of any subsequent contract. You can withdraw your agreement to the opt-out at any time but then the agency is within rights to cancel the contract and offer to renew with the opt-in version (or not at all).

As long as the client is dumb it is within your right to tell them what's going on and explain the advantages to them of not opting-out.

[Contreras]

Or:
[*]accept the opt-out contract, sign the opt-out, withdraw the opt-out an hour before you start the contract and then declare yourself outside IR35 and prove that the reality puts you outside.

Or does that not work? I forget.

Does it? I thought the opt-out agreement lasts for the duration of any subsequent contract. You can withdraw your agreement to the opt-out at any time but then the agency is within rights to cancel the contract and offer to renew with the opt-in version (or not at all).