Renegotiating a contract

**Sockpuppet** · 19 April 2007, 17:09

Originally posted by Signo_cypher

1. do not have right of substitution
2. carry out your services at premises of comapny X
3. are directed by company X and use their equipment
4. are paid using timesheets
5. work a standard working week at company X"

The fact that the agency contract is based on company X T&C's, I appear to be on a loser?

point 1. This is correct but can it be worded accordingly?
point 2. I didn't think this mattered?
point 3. I am sometimes told what to do but never how to do it, i thought that was the difference?
point 4. Does this matter in regards to IR35
point 5. Again, how does that tie into IR35?

1. Big IR 35 Pointer. Substitution is a big one to get in the contract. They are paying for your co no you if you have it.

2. Some see it as mattering. Depends on what you do when you are there. I work on company premesis mainly becuase the directors of DHL in my living room would be a bit cramped.

3. Direction and control is tricky. Build a new java thingy ma gig is not control. Go through theses test scripts and run them is.

4. Hourly or daily paid? I'd say this is a bigger pointer for hourly paid. My timesheets are just a way of the client signing they are happy with the work and are agreeing to pay the fee for that part of the project. Hourly is different. I just put one hour down for the hours worked, on a daily rate you see.

5. If you're there 9-5:30 and take lunch with the permies thats not great in IR35 land. I aim for 9-5:30 as thats a "professional day". In reality I do what is required to get the work done. I have no bones about leaving at 1:30am or pm depending on how the work is going. If you have to sit there regardless of if there is work that is a big IR35 pointer.

**Denny** · 19 April 2007, 17:39

Originally posted by Sockpuppet

1. Big IR 35 Pointer. Substitution is a big one to get in the contract. They are paying for your co no you if you have it.

2. Some see it as mattering. Depends on what you do when you are there. I work on company premesis mainly becuase the directors of DHL in my living room would be a bit cramped.

3. Direction and control is tricky. Build a new java thingy ma gig is not control. Go through theses test scripts and run them is.

4. Hourly or daily paid? I'd say this is a bigger pointer for hourly paid. My timesheets are just a way of the client signing they are happy with the work and are agreeing to pay the fee for that part of the project. Hourly is different. I just put one hour down for the hours worked, on a daily rate you see.

5. If you're there 9-5:30 and take lunch with the permies thats not great in IR35 land. I aim for 9-5:30 as thats a "professional day". In reality I do what is required to get the work done. I have no bones about leaving at 1:30am or pm depending on how the work is going. If you have to sit there regardless of if there is work that is a big IR35 pointer.

The substitution issue is not as clear cut as is mentioned here. What people don't seem to take into account is what is the industry standard. Is it typical that a right of substitution is used for those operating this type of business. If not, having the clause is likely to be seen as a sham.

To be perfectly honest, there are all sorts of interpretations about what falls inside IR35 and not. One person I spoke with said that just taking on a permie role as a contractor was enough to put you inside IR35 and that the rest didn't matter or wouldn't alter the situation. This has since been refuted. Others mention the importance of the other three clauses in the contract as being vital - particularly no MOO.

The important thing to remember is that there is not checklist that can be ticked off - judges refuse to see this as a valid way to telling who is and who isn't caught. The whole picture as well as the contract, the industry, the way the business is set up and run as well as the on site practices for each contract all make a difference.

In my view the main things to do when taking on a new contract is to reorientate the 'role' to specific project led deliverables put on a Schedule of Works. This is vital. Nev be bamboozled into taking on a 'role' even if the client calls it that (it may not be because they want you to be a temp, it may just be because they are used to being in permieland and so corporate speak comes more naturally to them than b2b speak). If the client uses permie expressions - line manager, working from home, temp worker or your agency etc. make sure you don't. They'll soon catch on when you don't mirror your language and if they ask why you do use such expressions, that gives you a golden opportunity to reinforce their thinking toward seeing you as a third party supplier. I always refer to my hiring manager as 'my client, I work out of my home office, not work from home and I frame my language in project deliverable terms always - never using terms like tasks or duties. If you get booted out for not 'fitting into the team' and using the same permie speak and doing things on your terms then you were probably being set up to be a de-facto permie and you're better off out of it. Of course a lot depends on your economic aversion to risk.

If the client won't play ball, and it looks like a bum on seater 9-5 de-facto permie role make sure the contract doesn't last for more than 4 weeks at a time, which can be better assessed for deliverables instead of a wooly role type spec and get it re-issued every month with a new set of deliverables for the next four weeks. That's why I always suggest doing a month's trial first. After then you may well have your feet under the table and the goalposts can more easily be shifted from bum on seat to outside. If not, a four week contract max won't make you outside, but it will make you more likely to be deemed outside depending on consideration of the other facts mentioned above. After all permie jobs do tend to last longer than a month. Anything longer is much more likely to be inside.

Try and negotiate open ended hours and don't be forced to work a 9-6 working day on site unless there is a specific B2B reason for your on-site presence. If this is difficult give the client an availability framework rather than agree to a 9-6 working day with no flexibility built in to work out of hours on Saturdays and Sundays to get project deliverables to meet deadlines. You are being paid for the time it take you to deliver the product, not paid for your pre-agreed available time that must be filled with deliverables. There is a vital difference there.

Try and avoid behaving like a permie - using the staff facilities, agreeing to an onsite job title, using the company phone and so on, going to staff parties. If you do need to go on the network telephone list, make sure you make it abundantly clear you are a contractor and put your company name. Try and get a contractor pass not a staff pass too and preferably sign in the visitors day book every day (which won't be possible if no one is prepared to come down and take you up each day). However, if this isn't an issue just sign in and let the receptionist release the barrier catch to let you through. Not sure why this was recommended as a record is hardly likely to be kept if a IR investigation happens later on. Much better than using the electronic swipe facility on a long term period contractor pass, apprently. This should also be accompanied by an agreement to work out of hours and offsite whenever it is possible.

If you have to visit your end-client's own client make sure that you go in your own company's name and not a representative of the client.

Good morning [shake hands] I am Denny One Man Band Limited and I'm here to represent my client Global Organisation Plc. is much better than saying I am Denny Surname working for [god forbid] or representing [they'll still assume you are on the payroll] Global Organisation Plc. If you get offered a visitors badge make sure you keep it as proof if it prints your own co name on it.

**ChimpMaster** · 20 April 2007, 08:41

I find that if you close your eyes and put your fingers in your ears, IR35 disappears.

**tino** · 20 April 2007, 08:53

Originally posted by TazMaN

I find that if you close your eyes and put your fingers in your ears, IR35 disappears.

bang on brother.

gordo comes to me telling me that I am getting done for IR35 I just go bankrupt and move into a council flat with a mattress made of cash

**Old Greg** · 20 April 2007, 08:54

Thanks Denny. Really useful advice for a newbie.

**Denny** · 20 April 2007, 08:58

Originally posted by TazMaN

I find that if you close your eyes and put your fingers in your ears, IR35 disappears.

You need a clothes peg too. Gordo and his IR henchmen got up peoples' noses most of all .

**dmini** · 20 April 2007, 11:52

If you speak to B&C they may give you an unofficial opinion on the contract, I did a year ago on a contract I thought failed - and was told it passed. I then paid for a formal review, made sure I match the conditions in the contract, have insurance, OK.
The chances are that they will already have come across that agency, and that whatever the agency say, it is their "standard" contract
Try it and see.

**mictech** · 20 April 2007, 12:15

Had my Hays standard contract checked with QDOS and it fails,

Mainly on substitution, while I could sub, the client had to approve the sub therefore clause invalid.
Controll and a couple others.

Hays will not change their T&C when a gave them the report. Be warned!

So I asked for 15% increase in rate to cover my extra tax burden. They won't budge on the rate. So sent them my CV to find me another role.

It will be intresting to see if there tune changes when I don't sign the extension. Looking for more work already.

**cojak** · 20 April 2007, 12:57

Using a company's equipment

Provided you only use the company's laptop I can't see this as a problem.

I state in writing at the beginning of the contract that MyCo provides me with mobiles, business cards, name tags, office supplies etc, but realises that for security purposes only the client's laptop will be used for the project.

I also state that MyCo will book and pay for any expenses and invoice, rather than use any client systems.

Renegotiating a contract