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supersteamer
15th September 2017, 18:44
I've been offered a PS contract that the PSB has declared as outside of IR35.

However I'm a bit concerned about some of the T&Cs the agency has put in it - notably something similar to the attempt to shift liability mentioned here: Recruiters shift IR35 liability costs to contractors :: Contractor UK (http://www.contractoruk.com/news/0013082recruiters_shift_ir35_liability_costs_contr actors.html)

Possibly some other malarkey as well.

I'd like to consult a contract expert on this but not sure what kind of review I'm looking for. It's NOT an IR35 review in the traditional sense as the PSB has already declared it outside, but some the above does touch on this area.

Who do I call? Looking for a quick, reliable review where the reviewer is happy to engage with the agency to cut through the legalese that goes over my head and find any gremlins that might bite. And of course doesn't blow my profit margin either of course. Would a normal IR35 reviewer be the answer or something more specific? Any recommendations welcome!

Thanks!

SueEllen
15th September 2017, 18:47
Roger Sinclair of Egos? Google is your friend.

Andy Hallett
15th September 2017, 19:38
The recruiters can't shift the liability to you. They can write it, but it wouldn't be enforceable.

supersteamer
16th September 2017, 14:52
The recruiters can't shift the liability to you. They can write it, but it wouldn't be enforceable.

How confident are you that it's not enforceable? Even in the article I linked to there was a difference of opinion reported. I don't want to be the test case (especially if my legal defence is, with all respect, that Andy from the Internet told me it would be fine!)

It's a short project on a low rate, so I don't want to (nor should I have to!) spend a fortune on lawyers to argue it out. I'm tempted to just walk away if the agency won't remove the clause but how common are these attempts to transfer liability becoming in outside-IR35 public sector work? Will the next contract be just the same?

eek
16th September 2017, 14:56
Andy Hallett is Andy Hallett of S3 who created http://forums.contractoruk.com/public-sector-ir35/120028-sthree-have-launched-their-ir35-product.html .

Unlike most people online I would trust his advice...

supersteamer
16th September 2017, 16:06
Andy Hallett is Andy Hallett of S3 who created http://forums.contractoruk.com/public-sector-ir35/120028-sthree-have-launched-their-ir35-product.html .

Unlike most people online I would trust his advice...

Apologies, no disrespect was intended to Mr Hallett - I have read many of his postings on here and agree that he is reliable source of advice in this area (thanks for responding Andy!). However, it's still just a posting on an internet forum, which doesn't meet my own personal comfort threshold level if I was trying to defend an agency's civil claim in court for a large amount of money! Andy - please would you be able to elaborate on why it would be unenforceable? And if it's unenforceable why would the agency be so reluctant to take it out?

Andy Hallett
17th September 2017, 21:24
Ultimately if it is found that you are inside IR35, the responsibility for the deductions is on the fee payer. The PSEC body decide status, the fee payer (agency) then decide if they reasonably agree and therefore want to carry the risk.

The ONLY way an agency MAY be able to shift liability is if you've acted fraudulently. The contractor is the safest entity in the whole scenario under the new rules.

The one thing you are correct on though is you shouldn't trust people on the internet and get some independent legal or financial advice.

If you are still not happy, we'd happily supply you, and we don't have such clause.

TheFaQQer
18th September 2017, 08:35
How confident are you that it's not enforceable? Even in the article I linked to there was a difference of opinion reported. I don't want to be the test case (especially if my legal defence is, with all respect, that Andy from the Internet told me it would be fine!)

The legislation is clear that the liability rests with the fee payer.

I'm fairly certain that there are organisations who would be prepared to argue that test case with appropriate legal resources.

malvolio
18th September 2017, 08:40
Are you an IPSE member? Their contract review service (https://www.ipse.co.uk/advice-support/contract-review)through Abbey Tax looks at the whole contract, not just the IR35 bits, so should pick this one up. Discounted for members, obviously, but they will work for non-members as well.