Eaglecliff & Shell - Mandatory 3 week holiday

[mcltd]

to change the days they require my services is to violate the terms of the contract

In that case, you are on a contract for services. They do not require your services on these days.

The contract for services that I signed clearly states that they require my services from November until February, Monday to Friday.

Any changes to the contract are forbidden.

Therefore, to change the days they require my services is to violate the terms of the contract.

It really is that simple.

There really is a difference between zero hour contracts, fixed term contracts, etc.

The devil is in the details.

[TestMangler]

The contract for services that I signed clearly states that they require my services from November until February, Monday to Friday.

Any changes to the contract are forbidden.

Therefore, to change the days they require my services is to violate the terms of the contract.

It really is that simple.

There really is a difference between zero hour contracts, fixed term contracts, etc.

The devil is in the details.

If it's that simple, I suggest immediate legal action.

Alternatively, read your contract again.

[mcltd]

Thanks for your time.

If it's that simple, I suggest immediate legal action.

Alternatively, read your contract again.

We agree. I had hoped to hear from other contractors at Shell facing the same predicament.

I asked Eaglecliff to clarify where in the contract it states that they could put the services to be delivered on hold.

There should be a specific clause that says they can pause the contract at any time, at their discretion. The contract isn't very long, however, and this clause does not seem to exist.

Eaglecliff can not point to such a clause in the contract, either.

I would go so far as to say that such a clause simply can not exist, because it exerts too much control over contractors.

If Shell could tell contractors on a day to day basis whether or not to come in to work, HMRC would reclassify those contractors as falling within IR35.

The recent court cases around workers in zero hour contracts support this idea.

Thanks for your time.

[TestMangler]

We agree. I had hoped to hear from other contractors at Shell facing the same predicament.

I asked Eaglecliff to clarify where in the contract it states that they could put the services to be delivered on hold.

There should be a specific clause that says they can pause the contract at any time, at their discretion. The contract isn't very long, however, and this clause does not seem to exist. Eaglecliff can not point to a clause in the contract, either.

I would go so far as to say that such a clause simply can not exist, because it exerts too much control over contractors. HMRC would be able to use the contract to reclassify contractors as falling within IR35 if Shell could tell contractors on a day to day basis whether or not to come in to work.

The recent court cases around workers in zero hour contracts support this idea.

Thanks for your time.

You're not a 'worker'. You are legal entity (Ltd Co) supplying services to a client. This is a business to business contract, not a contract of employment. Anything that the courts have to say about zero hours contracts, FTC, employee rights do not apply to you or this case.

[mcltd]

directing contractors as if they were employees results in a reclassification

You're not a 'worker'. You are legal entity (Ltd Co) supplying services to a client. This is a business to business contract, not a contract of employment. Anything that the courts have to say about zero hours contracts, FTC, employee rights do not apply to you or this case.

I am not a worker as long as Shell does not treat my contractors as workers.

The existence of a contract is not enough to guarantee the exclusion of worker's rights by the courts.

IR35 is clear in stating that the working practices matter, not what is written on paper.

Therefore, directing contractors as if they were employees results in a reclassification of said contractors as employees.

Even if I look at the situation from a business to business perspective, when you book a business to provide services for a set period of time, Monday to Friday, you don't get to unilaterally cancel the contract midway through, for no reason, and then reactivate it after you are finished 'holidaying'.

If you want that sort of flexibility, you have to be crystal clear from the beginning.

Changes, made after the contract is signed, are foolhardy.

Just imagine you are a famous singer. You are booked to perform every weekend over one month at some big time arena. Once you get there, the client tells you that you have to skip the third weekend. Because they want to take a holiday. They expect you to return the fourth weekend, however.

Guess what? They will almost certainly be legally obligated to pay you for that third weekend. They can't hide behind the fact that you aren't an employee.

The principle is the same.

[TestMangler]

I am not a worker as long as Shell does not treat my contractors as workers.

The existence of a contract is not enough to guarantee the exclusion of worker's rights by the courts.

IR35 is clear in stating that the working practices matter, not what is written on paper.

Therefore, directing contractors as if they were employees results in a reclassification of said contractors as employees.

Even if I look at the situation from a business to business perspective, when you book a business to provide services for a set period of time, Monday to Friday, you don't get to unilaterally cancel the contract midway through, for no reason, and then reactivate it after you are finished 'holidaying'.

If you want that sort of flexibility, you have to be crystal clear from the beginning.

Changes made after the contract is signed are foolhardy.

Is the contract with you (personally) or your Ltd Co ?

[LondonManc]

I am not a worker as long as Shell does not treat my contractors as workers.

The existence of a contract is not enough to guarantee the exclusion of worker's rights by the courts.

IR35 is clear in stating that the working practices matter, not what is written on paper.

Therefore, directing contractors as if they were employees results in a reclassification of said contractors as employees.

Even if I look at the situation from a business to business perspective, when you book a business to provide services for a set period of time, Monday to Friday, you don't get to unilaterally cancel the contract midway through, for no reason, and then reactivate it after you are finished 'holidaying'.

If you want that sort of flexibility, you have to be crystal clear from the beginning.

Changes, made after the contract is signed, are foolhardy.

Just imagine you are a famous singer. You are booked to perform every weekend over one month at some big time arena. Once you get there, the client tells you that you have to skip the third weekend. Because they want to take a holiday. They expect you to return the fourth weekend, however.

Guess what? They will have to pay you. They can't hide behind the fact that you aren't an employee.

The principle is the same.

Are your contractors inside or outside IR35?

[mcltd]

Ltd Co

Is the contract with you (personally) or your Ltd Co ?

The contract is with my Ltd Co

[mcltd]

contractors are currently outside IR35 (but this latest move....)

Are your contractors inside or outside IR35?

My contractors are currently outside IR35 as far as Shell and Eaglecliff are concerned. I pay PAYE for them as they are my employees.

I would argue that randomly asking my contractors to take a holiday violates IR35, but I realise these decisions rely on several factors

[TestMangler]

The contract is with my Ltd Co

Well, that's a step forward. You admit that you don't personally, as a worker, have a contract with the end client.

Therefore, anything you think/read/believe/imagine about workers rights, does not apply to the relationship you have with the client. You could possibly take legal action against your own Ltd if they refuse to pay you for that period.