QDOS IR35 Assessment failure

**zathras** · 16 June 2008, 16:05

Originally posted by hgllgh View Post

Sent in my contract for assessment by QDOS and they failed it on one clause when all other clauses regarding IR35 are sound (D&C, MOO, RoS, exclusivity etc)

The offending clause ...
"The supplier shall procure that the Consultant shall comply with Clauses 2,4,5,6,7,8 and 12 as if the Consultant were a party to this Agreement in place of the Supplier."

(Clauses 2,4,5,6,7,8 and 12 are the main supplier clauses in the contract)
They said it ties me to the contract individually (even though I am not named) and should be deleted. I have emailed the agency to try to get them to remove it!

Anyone seen this type of clause before?

Also, As I understand it the contract should pass if it is strong on one or more of the big 3 (D&C,Ros,MOO) ?

Not seen it before but it looks like they want to ensure that the worker has agreed to the same terms as the contract.

Seems suspect anyway as it drives a coach and horses through the concept of privity of contract (mind you the IR has done that as well with IR35). This doctine basically says that a 3rd party (the worker) cannot have enforced upon them the terms of a contract between A Company (YourEDS) and the Client (BigDumbAgencyCo).

As I understand it the contract should pass if it is strong on one or more of the big 3 (D&C,Ros,MOO) ?

Only if they are genuine

**hgllgh** · 17 June 2008, 10:10

Originally posted by zathras View Post

Not seen it before but it looks like they want to ensure that the worker has agreed to the same terms as the contract.

Seems suspect anyway as it drives a coach and horses through the concept of privity of contract (mind you the IR has done that as well with IR35). This doctine basically says that a 3rd party (the worker) cannot have enforced upon them the terms of a contract between A Company (YourEDS) and the Client (BigDumbAgencyCo).

Thanks Zathras! Interesting point re privity of contract.

So the following clause in my contract ....
"The supplier shall procure that the Consultant shall comply with Clauses 2,4,5,6,7,8 and 12 as if the Consultant were a party to this Agreement in place of the Supplier."

Could actually be re-written as ....
"The supplier shall procure that the Consultant shall comply with Clauses 2,4,5,6,7,8 and 12 as if the Consultant were a party to this Agreement in place of the Supplier, Just in case HMRC decides that this written contract is a sham and that a contract of employment exists between the Consultant and the Client, thereby still binding the poor bugger to the terms of the contract"

??????

**hgllgh** · 17 June 2008, 11:57

anyone .....

**beeker** · 17 June 2008, 13:13

I dont think your post is correct -

That clause in my opinion is basically saying that the agreement can exist between the consultant and the agency directly - without MyCo's involvement. Meaning you would become employed by the Agency and not MyCo.

It basically negates any of the 'big three' clauses that may exist in the contract. get it removed.

**Integrity** · 17 June 2008, 13:20

This type of clause is designed to circumnavigate Ltd Liability

**beeker** · 17 June 2008, 13:24

name and shame x 3

**hgllgh** · 17 June 2008, 14:28

The agency is GlobalTech.

There is some kind of register of agencies where this kind of thing is listed .. or they are rated ... anyone know if Globaltech are on there?

**Archangel** · 17 June 2008, 14:42

Originally posted by hgllgh View Post

The agency is GlobalTech.

There is some kind of register of agencies where this kind of thing is listed .. or they are rated ... anyone know if Globaltech are on there?

PCG have something (I think, I haven't used it myself)

QDOS IR35 Assessment failure