New Contract - Qdos Reviewed - Now on to agency negotiation

[GillsMan]

Hi all,

I'm after some advice here if that's OK. I have recently secured a new contract and had it Qdos reviewed for IR35 compliance, the first time I've done this. Following the review, I asked the agency to amend some clauses, including the following:

• The schedule names me as the Personnel - on Qdos' advice, I asked them to name the Personnel as me "or any agreed substitute".
• The Supplier shall procure that the Personnel shall be subject to the same obligations as the Supplier under this Contract and agrees that it shall be liable for all acts or omissions of the Personnel in connection with this Contract. - By making me subject to same obligations as my company is problematic according to Qdos. Asked agency to amend.
• at the end of each working month the Contractor shall also submit an itemised list of such expenses incurred during the relevant month signed and approved by the End User’s
  authorised representative together with all the receipts for the same. - Qdos think this is indicative of an employment relationship, and that I should be sending an invoice through if I did incur expenses.
• Alterations to any overtime arrangements, if applicable, may be made by prior written agreement between the Agency and the Contractor. - I asked to remove on the advice of Qdos to on the basis that I charge on a professional day basis, and overtime isn't payable by agency or client.
• A load of guff about how my company must ensure that I complete all work reasonably part of daily workload, even if it means working past the end of my shift, e.g. logging calls, etc. - Qdos advised this is removed as it's stuff that a professional should know anyway. I agree, and I'm supposed to be offering a consultancy, not logging calls.
• A requirement to hold Employer's Liability insurance - I asked this to be removed as I'm a one-man limited co, so I don't believe I need to hold this.

The agy have agreed to some amendments to the schedule, but none to the contract itself. They stated that they couldn't do it without seeking legal advice and pointed out that they updated their contracts last year at some expense so would only be happy to make changes if I pay for their legal advice!

What do you folks think? I'm sure that Qdos are over cautious, but these look like reasonable points to me. Frankly, I could walk away if agy continues to refuse as I have a WFH gig that's keeping me going at the moment, but I also don't want to be overly picky, as the role is quite interesting. Would you concede on any of those points?

I'm aware that working practices are probably more important than the contract, but I do want to get the contract right.

Thanks for any advice!

[northernladuk]

This isn't good. You are right working practices are also taken in to account but it looks from that the working practices are going to be even worse for you than the contract. It is ok taking out but you have to make sure you don't, in practice, carry some of those out either. The naming you personally, full blown expenses... these are not small pointers...

I don't think QDOS are being overly cautious, you pay them to review and they have reviewed it using their expertise. One or two items is being cautious, this result is a problem.

Personally I would be hard pushed to accept this role if they won't change those but I don't know the full detail.

Would it kill you to do the role and work inside IR35? You won't get as much but if it is that interesting or useful it might be worth swallowing it for future gain?

[TheFaQQer]

The agy have agreed to some amendments to the schedule, but none to the contract itself. They stated that they couldn't do it without seeking legal advice and pointed out that they updated their contracts last year at some expense so would only be happy to make changes if I pay for their legal advice!

Not sure which of the issues are in the schedule and which are in the contract, so it's a bit tricky. As a business owner, I don't care what it costs someone else to discuss changes with anyone else. I don't care who they asked last time to revise their contract (maybe they should have used someone with a clue about IR35!). Did they offer to pay for your legal advice to check the contract? Of course they didn't, so why should you pay for theirs??

What do you folks think? I'm sure that Qdos are over cautious, but these look like reasonable points to me. Frankly, I could walk away if agy continues to refuse as I have a WFH gig that's keeping me going at the moment, but I also don't want to be overly picky, as the role is quite interesting. Would you concede on any of those points?

I pay Qdos for expert advice and guidance (same as my clients pay me, really!) - I think it would be crazy to disagree with their assessment, but it's up to you. Do you have any IR35 insurance in place? I use Qdos for that, but I'm not sure whether I would be covered if I had them assess the contract as a fail and I went ahead anyway.

Choices are:
1) Threaten to walk away. Agency caves in and you get what you want.
2) Threaten to walk away. Agency does not cave, and you back down, but chance it outside IR35.
3) Threaten to walk away. Agency does not cave, and you back down, and you declare the contract inside IR35.
4) Threaten to walk away. Agency does not cave, and you walk away.

Personally, I'd tell the agency to do one. If they cave in, then great. If not, then walk. If you have any contact details for the client, then that helps, because you can always get your side of the story in first.

[BolshieBastard]

Hi all,

I'm after some advice here if that's OK. I have recently secured a new contract and had it Qdos reviewed for IR35 compliance, the first time I've done this. Following the review, I asked the agency to amend some clauses, including the following:

• The schedule names me as the Personnel - on Qdos' advice, I asked them to name the Personnel as me "or any agreed substitute".
• The Supplier shall procure that the Personnel shall be subject to the same obligations as the Supplier under this Contract and agrees that it shall be liable for all acts or omissions of the Personnel in connection with this Contract. - By making me subject to same obligations as my company is problematic according to Qdos. Asked agency to amend.
• at the end of each working month the Contractor shall also submit an itemised list of such expenses incurred during the relevant month signed and approved by the End User’s
  authorised representative together with all the receipts for the same. - Qdos think this is indicative of an employment relationship, and that I should be sending an invoice through if I did incur expenses.
• Alterations to any overtime arrangements, if applicable, may be made by prior written agreement between the Agency and the Contractor. - I asked to remove on the advice of Qdos to on the basis that I charge on a professional day basis, and overtime isn't payable by agency or client.
• A load of guff about how my company must ensure that I complete all work reasonably part of daily workload, even if it means working past the end of my shift, e.g. logging calls, etc. - Qdos advised this is removed as it's stuff that a professional should know anyway. I agree, and I'm supposed to be offering a consultancy, not logging calls.
• A requirement to hold Employer's Liability insurance - I asked this to be removed as I'm a one-man limited co, so I don't believe I need to hold this.

The agy have agreed to some amendments to the schedule, but none to the contract itself. They stated that they couldn't do it without seeking legal advice and pointed out that they updated their contracts last year at some expense so would only be happy to make changes if I pay for their legal advice!

What do you folks think? I'm sure that Qdos are over cautious, but these look like reasonable points to me. Frankly, I could walk away if agy continues to refuse as I have a WFH gig that's keeping me going at the moment, but I also don't want to be overly picky, as the role is quite interesting. Would you concede on any of those points?

I'm aware that working practices are probably more important than the contract, but I do want to get the contract right.

Thanks for any advice!

This is why I always use Danny at Bauer & Cottrill. B&C negotiate on your behalf included in the review price (which isnt expensive) and are far more successful than the majority of contractors trying to do it.

Why is QDOS doing the negotiating for you?

[minstrel]

This is why I always use Danny at Bauer & Cottrill.

+1 to that.

Danny from Bauer & Cottrell has always done a great job for me. If you get any kick back from agent you can just tell them to speak to your legal people because you aren't going to sign anything without the green light from them.

[GillsMan]

Thanks all for your responses, all very useful stuff.

NLUK - This contract was already paying slightly below market rate and I let them negotiate the rate further on the basis that I had a flexible WFH arrangement, which allows me to continue a second contract with another client (no agy - I wrote the contract myself - much better!). In all, declaring inside IR35 would cost an extra £5,000 over the six month contract, so I think I can't justify declaring within. Obviously it helps that I already have a steady income stream, but I am prepared to walk. Thanks for your thoughts, as I've paid for the review, I agree I should go along with their advice.

FAQQer - no I don't have IR35 insurance in place, and while it's a good idea, I agree that it's unlikely to pay out if I accept a contract that was judged to fail by a professional reviewer.

BB/Minstrel - thanks for the tip. I liked the review that Qdos did, but I'll certainly consider your recommendations next time to compare and contrast. I will consider asking Qdos if they can negotiate on my behalf if this gets any trickier.

So, what I've done is emailed the agy saying basically that I'm unable to justify the contract if I have to declare inside IR35, and their contract wording means that I'd have to. I've emphasised that I'm keen to work towards a resolution, but basically said that I will need them to amend the contract in order to proceed.

Can't believe they suggested I pay their legal fees! Cheeky gits.

[Boo]

B&C negotiate on your behalf included in the review price (which isnt expensive) and are far more successful than the majority of contractors trying to do it.

That wasn't my experience of B&C. The woman I dealt with there (can't remember her name and care less) had just finished amending someone else's contract at the same agency I was through but this somehow didn't help in getting any of the terms changed. She spent all her time on the phone with me telling me the contract terms (like substitution) "don't matter as the courts are looking through the terms to what actually happens, and if you don't actually substitute then the term is deemed irrelevant" (a while ago, but that was the gist).

I eventually accepted the very little she was able to do and went back to the agency myself and found them fairly amenable to acepting some further necessary changes.

That has been my usual experience with hired negotiators : they are completely useless. I hired a bloke at Lawspeed once to negotiate rates just to find out if it was just me who was getting bad deals (it was in around 2003 and no, it was not just me who could only negotiate bad deals) .

There is of course a good reason for hired negotiators to be useless : because they feel they will look complete twats if the agency gets the hump and walks away through them trying too hard. You on the other hand know what matters to you and can be as hard as you like, up to the point that if they walk they walk.

So I personally, through my own experience, would never trust a 3rd party to negotiate on my behalf. They won't/can't try as hard as you and will queer the pitch for your own attempts. A complete waste of money IMHO.

Boo

[kingcook]

So, what I've done is emailed the agy saying basically that I'm unable to justify the contract if I have to declare inside IR35, and their contract wording means that I'd have to. I've emphasised that I'm keen to work towards a resolution, but basically said that I will need them to amend the contract in order to proceed.

Good for you. It would be good to hear the outcome of all of this

[malvolio]

FAQQer - no I don't have IR35 insurance in place, and while it's a good idea, I agree that it's unlikely to pay out if I accept a contract that was judged to fail by a professional reviewer.

Join the PCG then. Unconditional cover for any tax investigation, £220 a year, to include assorted extra benefits. Total no brainer.

HTH

[psychocandy]

This is why I always use Danny at Bauer & Cottrill. B&C negotiate on your behalf included in the review price (which isnt expensive) and are far more successful than the majority of contractors trying to do it.

Why is QDOS doing the negotiating for you?

How much do B&C charge to do the negotiations for you?