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aikidoka
20th March 2017, 09:28
Hi all,

I was hoping for some opinions on this scenario:

My PS client has taken the blanket decision that "everyone is inside" - so naturally I'm not prepared to extend my contract that runs out this week.

I've provided them with all the evidence that I'm outside: running the HMRC tool, running the test at IR35testing and also a QDOS review but they're still not willing to take the "risk".

I'm not prepared to raise my rates and accept an "inside" position as that would potentially open me up to the argument that I agree that I'm inside.

However, the client has now offered to pay in advance for a fixed number of days consultancy - so it's a different contract, but the role and tasks remain unchanged.

Thoughts?

northernladyuk
20th March 2017, 09:47
Hi all,

I was hoping for some opinions on this scenario:

My PS client has taken the blanket decision that "everyone is inside" - so naturally I'm not prepared to extend my contract that runs out this week.

I've provided them with all the evidence that I'm outside: running the HMRC tool, running the test at IR35testing and also a QDOS review but they're still not willing to take the "risk".

I'm not prepared to raise my rates and accept an "inside" position as that would potentially open me up to the argument that I agree that I'm inside.

However, the client has now offered to pay in advance for a fixed number of days consultancy - so it's a different contract, but the role and tasks remain unchanged.

Thoughts?

Will this fixed number of days be inside or outside, according to the client?

Fred Bloggs
20th March 2017, 09:49
Hi all,

I was hoping for some opinions on this scenario:

My PS client has taken the blanket decision that "everyone is inside" - so naturally I'm not prepared to extend my contract that runs out this week.

I've provided them with all the evidence that I'm outside: running the HMRC tool, running the test at IR35testing and also a QDOS review but they're still not willing to take the "risk".

I'm not prepared to raise my rates and accept an "inside" position as that would potentially open me up to the argument that I agree that I'm inside.

However, the client has now offered to pay in advance for a fixed number of days consultancy - so it's a different contract, but the role and tasks remain unchanged.

Thoughts?
Thoughts? Sure, a different contract eh? Silver bullet I reckon, go right ahead. Hector will roll right over while you tickle his tummy.

LondonManc
20th March 2017, 09:54
Thoughts? Sure, a different contract eh? Silver bullet I reckon, go right ahead. Hector will roll right over while you tickle his tummy.

This isn't General, Fred. Destroy his suggestion constructively please. :D


OP - when you say pay in advanced, are you looking at a fixed price deliverable or are they still paying just for your bum on a seat

aikidoka
20th March 2017, 10:06
Hi all, thanks for the responses.

It would be Outside and potentially they would be invoicing my company directly rather than through the agency.

They are paying me for a set number of consultancy days to deliver 2 projects that I have already provided estimates for. So, yes... in this case there is a fixed deliverable.

It just feels a little like one of the reasons IR35 came into being where people were leaving an organisation on the Friday, only to come back on the Monday as a "consultant" in the same job.

northernladyuk
20th March 2017, 10:12
Hi all, thanks for the responses.

It would be Outside and potentially they would be invoicing my company directly rather than through the agency.

They are paying me for a set number of consultancy days to deliver 2 projects that I have already provided estimates for. So, yes... in this case there is a fixed deliverable.

It just feels a little like one of the reasons IR35 came into being where people were leaving an organisation on the Friday, only to come back on the Monday as a "consultant" in the same job.

If you were outside before, and you are outside now, and the client is taking the IR35 risk now, and you have a fixed price contract, it sounds like you have a goer.

northernladuk
20th March 2017, 10:14
Aren't you already paid for a fixed number of consultancy days i.e. 3 months work with a fixed deliverable? It's what we do no? Not sure how changing the wording of the contract is going to make a difference. They've already said the gig is inside and you say you'll be doing the same thing. All it sounds to me is they are trying to get the paperwork to look outside.

Not sure how you are going to get out of your handcuff from the agent either.

You need to be very careful. You need a completely different method of engagement. If there is any sniff of you being paid to carry on your inside role your defense will fall around your ears. Not sure if changing your billing to a lump sum at the end or upfront will make any difference though. It would have to be considerably different and not just a different period of payment i.e. once rather than monthly.

I'd be very careful if I were you. It might work if you get the engagement right... but I'm thinking that's going to be tough bearing in mind you are just carrying on doing what you did before.

LondonManc
20th March 2017, 10:30
Aren't you already paid for a fixed number of consultancy days i.e. 3 months work with a fixed deliverable? It's what we do no? Not sure how changing the wording of the contract is going to make a difference. They've already said the gig is inside and you say you'll be doing the same thing. All it sounds to me is they are trying to get the paperwork to look outside.

Not sure how you are going to get out of your handcuff from the agent either.

You need to be very careful. You need a completely different method of engagement. If there is any sniff of you being paid to carry on your inside role your defense will fall around your ears. Not sure if changing your billing to a lump sum at the end or upfront will make any difference though. It would have to be considerably different and not just a different period of payment i.e. once rather than monthly.

I'd be very careful if I were you. It might work if you get the engagement right... but I'm thinking that's going to be tough bearing in mind you are just carrying on doing what you did before.

Not really; fixed price means that you keep coming in until it's done and you can then calculate what your actual day rate is, e.g. £25,000 was agreed as the price and you get it done as quickly as you can, whereas the other way, you'll bill for 54 days over the 3 months at the pre-agreed rate.

aikidoka
20th March 2017, 10:37
Aren't you already paid for a fixed number of consultancy days i.e. 3 months work with a fixed deliverable? It's what we do no? Not sure how changing the wording of the contract is going to make a difference. They've already said the gig is inside and you say you'll be doing the same thing. All it sounds to me is they are trying to get the paperwork to look outside.


It's more that the practical people are trying to get around HR's blanket "Inside" view. HR have not run the tool on each individual contract, merely based it on their standard contract for Pertemps staff. My individual contract and actual working practice is a lot more complex.



Not sure how you are going to get out of your handcuff from the agent either.


That's for them to sort out... they suggested it. I'm happy either way. Having said that, my agent rep thought that the u-turn on NI payments was the government abolishing IR35... so I don't think they know what's going on! :laugh



You need to be very careful. You need a completely different method of engagement. If there is any sniff of you being paid to carry on your inside role your defense will fall around your ears. Not sure if changing your billing to a lump sum at the end or upfront will make any difference though. It would have to be considerably different and not just a different period of payment i.e. once rather than monthly.

I'd be very careful if I were you. It might work if you get the engagement right... but I'm thinking that's going to be tough bearing in mind you are just carrying on doing what you did before.

Thanks for the pointers. As I said, the tool (and other tests) do put me outside anyway, it's just the risk-averse client admin that put me inside. I've also mentioned that the contract would have to be reviewed and a different one drawn up, especially if I'm working without the agency.

LondonManc
20th March 2017, 10:40
It's more that the practical people are trying to get around HR's blanket "Inside" view. HR have not run the tool on each individual contract, merely based it on their standard contract for Pertemps staff. My individual contract and actual working practice is a lot more complex.

That's for them to sort out... they suggested it. I'm happy either way. Having said that, my agent rep thought that the u-turn on NI payments was the government abolishing IR35... so I don't think they know what's going on! :laugh

Thanks for the pointers. As I said, the tool (and other tests) do put me outside anyway, it's just the risk-averse client admin that put me inside. I've also mentioned that the contract would have to be reviewed and a different one drawn up, especially if I'm working without the agency.

Suggest to Pertemps that they get someone to draw up two types of contract - one for Inside and one for Outside IR35 gigs - so that they can operate more efficiently in the future and that if the end client makes a determination, they are ready to move quickly with the appropriate boilerplate contract.

northernladuk
20th March 2017, 10:42
Not really; fixed price means that you keep coming in until it's done and you can then calculate what your actual day rate is, e.g. £25,000 was agreed as the price and you get it done as quickly as you can, whereas the other way, you'll bill for 54 days over the 3 months at the pre-agreed rate.

Yeah but isn't he in no mans land surely. Fixed number of days for a fixed deliverable? It's one or the other hasn't it. Is it fixed price, or is it paid on delivery? It just doesn't sound different enough to be anything more than he's got now.

LondonManc
20th March 2017, 10:44
Yeah but isn't he in no mans land surely. Fixed number of days for a fixed deliverable? It's one or the other hasn't it. Is it fixed price, or is it paid on delivery? It just doesn't sound different enough to be anything more than he's got now.

Yep, fixed price is the silver bullet, not fixed number of days. I'm not even sure that the OP suggested a fixed deliverable, rather a service package if you will.

Fred Bloggs
20th March 2017, 11:02
Yep, fixed price is the silver bullet, not fixed number of days. I'm not even sure that the OP suggested a fixed deliverable, rather a service package if you will.
Exactly. A lump sum project bid for and won on price, executed against a purchase order. You're home and dry.

Same role, different "agreement" and a different contract = No silver bullet. Sorry.

northernladuk
20th March 2017, 11:14
Yep, fixed price is the silver bullet, not fixed number of days. I'm not even sure that the OP suggested a fixed deliverable, rather a service package if you will.

Hmm Yeah. I'd assumed fixed deliverable as that is what he's already doing and expected to do. You can call it a service package but if he's admitted it's the same role then I don't think he can polish it up.

He says


but the role and tasks remain unchanged.

and think that this covers it...



Same role, different "agreement" and a different contract = No silver bullet. Sorry.

Whether HMRC can have the wool pulled over their eyes is a different question but it appears to me it will just fall apart under the slightest of scrutiny.

The only get out here is the OP does say is


My individual contract and actual working practice is a lot more complex.


So it could actually be that the new format more suits his delivery better than the old bum on seat one so could work. Devil will be in the details.

LondonManc
20th March 2017, 11:19
Hmm Yeah. I'd assumed fixed deliverable as that is what he's already doing and expected to do. You can call it a service package but if he's admitted it's the same role then I don't think he can polish it up.

He says

and think that this covers it...

Whether HMRC can have the wool pulled over their eyes is a different question but it appears to me it will just fall apart under the slightest of scrutiny.

The only get out here is the OP does say is

So it could actually be that the new format more suits his delivery better than the old bum on seat one so could work. Devil will be in the details.

The complexity of what though? Unless the OP can prove that he is a special case or he's prepared to risk a fixed price contract with a fixed deliverable, it could well be scrutinised. I'd be pushing back on the client and Pertemps while trying to educate them that not all roles should be inside IR35 rather than getting caught up in the structure of the contract.

WordIsBond
20th March 2017, 14:17
Hi all, thanks for the responses.

It would be Outside and potentially they would be invoicing my company directly rather than through the agency.

They are paying me for a set number of consultancy days to deliver 2 projects that I have already provided estimates for. So, yes... in this case there is a fixed deliverable.

It just feels a little like one of the reasons IR35 came into being where people were leaving an organisation on the Friday, only to come back on the Monday as a "consultant" in the same job.
If the >client< is saying it would be outside, fine, ignore any of these guys who didn't bother to read carefully. The client bears the liability, all is well.

If you've got a new contract, even better. If you've got a direct contract not through the agency, better still. If you've got a direct contract not through the agency, and you are getting paid part of the cut the agency was taking, best of all.

If the client isn't the one saying it would be outside, if that's just your assessment, forget it.