Different contract as a result of opting in

**northernladuk** · 6 April 2015, 18:29

Have you had it checked by QDOS or B&C?

**tractor** · 6 April 2015, 18:30

.....

Originally posted by kempc23 View Post

I am due to start a new contract shortly. I made a deliberate decision to stay opted in of the conduct of employment agencies regulations where I can for one very specific reason. If I want to supply services directly to an end client at some point in the future after a contract finishes, I do not want to be prevented from doing so for 6-12 months.

I had been interviewed and verbally offered a contract, which I intend to accept. The agency asked me to confirm I wanted to opt out, which I said I didnt. They then replied that it would put me in IR35 and I would need to pay income tax on my earnings. I know this is not true, and also confirmed this with my accountant. I also pointed out that as we had not discussed it prior to being introduced to the client, it would not be possible to opt out anyway.

I have now been sent the contract to sign, and having now spent some time reviewing the contract, both the main contract and the schedule are clearly marked as an 'opt-in' contract. In general it seems a fairly standard business to business contract, and includes the typical contract terms which intend to place it out of IR35 (MOO, substitution clause, flexibility on hours etc) but there are a couple of terms that I have not come across before, and which looks questionable-

All payments hereunder will be made to the Contractor, and the Contractor shall be responsible for any PAYE Income Tax and National Insurance Contributions, statutory entitlements such as holiday pay and statutory sick pay, and any other taxes and deductions payable in respect of its Personnel.

All Fees payable by ReThink to the Contractor (.......) are gross and shall be payable net of any deductions that ReThink may now or in the future be required by law to deduct there from.

The contract also refers to "the contractor" rather than the company, which seems a bit odd and none of my contracts have been like this.

Has anyone else her come across the situation where they are given a different contract as a result of opting in? It certainly is a different contract as it makes specific reference to not having any restrictions on working direct after the end of the contract, and also that payment will be made regardless of whether a signed timesheet is received. I do not think whether I sign this one or a different one would have any impact whatsoever on my actual working practices, so maybe I am being a bit paranoid. As the opt out is likely to be invalid now in any case, I wonder if I should just request the 'opt-out' version of the contract instead. I would usually get the contract reviewed by InTouch, but they no longer do this as they say that working practices are far more important than the terms of the contract.

Agents and agencies mindlessly follow the tripe that REC

, APSCO

and their own silly lawyers

spout without an inkling of understanding of the law. The situation is currently exacerbated by the recent barrage of changes made via ITEPA changes in the last couple of years vis a vis the alleged 'self employed' loophole, agency reporting and the controlling person changes.

The best and only way to resolve the issues you describe are to subscribe to IPSE if you are not already a member and to have the contract professionally reviewed by one of the organisations that review and negotiate changes on your behalf. This way, you have a degree of separation between you and the numpties and the issues will be resolved lawyer to lawyer. The biggest advantage here is that their lawyer can not even attempt to pull the wool over your lawyer's eyes. They would be foolish to even try.

The quicker you arrange this the better. I cannot remember which of the professionals do the negotiating for you but a search will do the trick or you can wait for someone to come along in a minute and refresh our memories

**kempc23** · 6 April 2015, 18:31

No. As I stated above, I usually would get any contract checked by InTouch, but they no longer do this and prefer to look to working practices instead of the words of the contract.

**kempc23** · 6 April 2015, 18:37

Thanks for the advice Tractor. IR35 is not something I have usually had to consider much in the past, mainly because I have provided sub-contractors for clients over the past few years, and also had contracts to provide resources for other clients that I was not directly providing my own services for. So quite clearly in business on my own account.

I wonder if I am worrying about this too much, stated frankly, only an idiot would think I was a disguised employee with the work that I do. I can also collect plenty of evidence of working practices that show me to be outside of IR35 over the course of this six month contract.

**tractor** · 6 April 2015, 19:38

...

"All Fees payable by ReThink to the Contractor (.......) are gross and shall be payable net of any deductions that ReThink may now or in the future be required by law to deduct there from."

It is this type of clause that would worry me and without seeing the entire contract, there may be many more.

I understand that InTouch may no longer be reviewing but there are a couple of good ones above that still do and will negotiate on your behalf.

**SpontaneousOrder** · 6 April 2015, 20:06

Originally posted by kempc23 View Post

I am due to start a new contract shortly. I made a deliberate decision to stay opted in of the conduct of employment agencies regulations where I can for one very specific reason. If I want to supply services directly to an end client at some point in the future after a contract finishes, I do not want to be prevented from doing so for 6-12 months.

I had been interviewed and verbally offered a contract, which I intend to accept. The agency asked me to confirm I wanted to opt out, which I said I didnt. They then replied that it would put me in IR35 and I would need to pay income tax on my earnings. I know this is not true, and also confirmed this with my accountant. I also pointed out that as we had not discussed it prior to being introduced to the client, it would not be possible to opt out anyway.

I have now been sent the contract to sign, and having now spent some time reviewing the contract, both the main contract and the schedule are clearly marked as an 'opt-in' contract. In general it seems a fairly standard business to business contract, and includes the typical contract terms which intend to place it out of IR35 (MOO, substitution clause, flexibility on hours etc) but there are a couple of terms that I have not come across before, and which looks questionable-

All payments hereunder will be made to the Contractor, and the Contractor shall be responsible for any PAYE Income Tax and National Insurance Contributions, statutory entitlements such as holiday pay and statutory sick pay, and any other taxes and deductions payable in respect of its Personnel.

All Fees payable by ReThink to the Contractor (.......) are gross and shall be payable net of any deductions that ReThink may now or in the future be required by law to deduct there from.

The contract also refers to "the contractor" rather than the company, which seems a bit odd and none of my contracts have been like this.

Has anyone else her come across the situation where they are given a different contract as a result of opting in? It certainly is a different contract as it makes specific reference to not having any restrictions on working direct after the end of the contract, and also that payment will be made regardless of whether a signed timesheet is received. I do not think whether I sign this one or a different one would have any impact whatsoever on my actual working practices, so maybe I am being a bit paranoid. As the opt out is likely to be invalid now in any case, I wonder if I should just request the 'opt-out' version of the contract instead. I would usually get the contract reviewed by InTouch, but they no longer do this as they say that working practices are far more important than the terms of the contract.

The opt-out version still has those same clauses in it. And it uses the same terminology too. Contractor means the company, and personnel means whoever the contractor supplies.

**kempc23** · 6 April 2015, 20:10

SpontaneousOrder: How do you know? Have you worked out which agency I am talking about somehow? That is great if so. I will PM you the agency name just in case there are any issues here. Its the below clause I am most worried about.

All Fees payable by ReThink to the Contractor (.......) are gross and shall be payable net of any deductions that ReThink may now or in the future be required by law to deduct there from

**SpontaneousOrder** · 6 April 2015, 20:18

Originally posted by kempc23 View Post

SpontaneousOrder: How do you know? Have you worked out which agency I am talking about somehow? That is great if so. I will PM you the agency name just in case there are any issues here. Its the below clause I am most worried about.

All Fees payable by ReThink to the Contractor (.......) are gross and shall be payable net of any deductions that ReThink may now or in the future be required by law to deduct there from

You quoted the agency name in your post

**kempc23** · 6 April 2015, 20:33

Originally posted by SpontaneousOrder View Post

You quoted the agency name in your post

That goes to show how tired I am, I quoted it in the first post, and then again just above

Different contract as a result of opting in