Has anyone successfully altered an agency contract for IR35 compliance?

[killingtime]

Hello,

I'm in a position to take a contract via an agency. The contract in question is in my possession and is very one sided in favor of the agency (no arbitration on points of contention, just immediate contract termination etc). There are also no clauses in there that seem to clarify my position in terms of IR35 - like worker substitution. This is fairly standard (unfortunately) in my experience.

This isn't my first contract, and in the past, I've used contract lawyers at 150/hr to examine and 're-balance' agency contracts with little success. Every agency I've used always flat out rejects any changes even though they've come from a lawyer, and seem reasonable.

Looking back over 10 years, I've not had any success in getting agency contracts changed. My experience echos that described below:

Negotiating a better deal :: Contractor UK

Boiler plate contracts. Agree to them or not at all and go elsewhere.

This raises the question, *how* are contractors implementing IR35 compliance in the real world?

There are no end of guides, forum threads and assessments that will tell you about IR35 and your particular status, but it's all for nothing if the contract your company signed gives the tax man an easy ride.

I also realise that IR35 is based on actual working practices, and not just the contract. OK, so the contract says one thing and you did another that put you outside of IR35. How do you prove this when the tax man comes knocking?

Changing agencies isn't really an option as,

a) Many companies (that I contract for) have preferred agencies or body-shops, and they deal with no one else.
b) Almost all contracts I've seen in the last 10 years have been very one sided in favor of the agency.

If the agency won't budge on their contract details, then I only see one option: Ask the end client to sign a letter confirming they agree to let you ..... substitute, use your own equip etc.... once you're on-site. I don't know many line managers that would go out on such a limb like that for a contractor without good reason. Bit of a gamble IMHO as you've already accepted the contract at that stage.

Very interested to know how others deal with this issue, or if they see it as an issue at all.

Thanks,

[Clare@InTouch]

Most agencies are unwilling to change a contract as they are more worried about covering themselves than about helping you, and they often totally miss the point when it comes to IR35 - there's little point having a substitution clause if it's fettered for example, but they don't understand the difference.

I've not heard of a line manager refusing to sign a confirmation letter. Surely they aren't putting themselves on the line at all unless you're asking them to lie for you....? If you're simply asking them to confirm the genuine working conditions it should be easy to do, even if it's just an email to them asking if they agree your described level of control to be true. Failing that, keep your own proof via diary entries and emails etc to prove your case.

[cojak]

I ALWAYS get Bauer & Cottrell to review my contracts, they will talk to the angency on my behalf to get it sorted.

I've never had to turn down a contract yet.

And I always have a folder for each contract keeping evidence of everytime I've behaved like a business on my own account, as well as every piece of evidence of clients excluding me from benefits because I'm a contractor.

[The Spartan]

I've had 3 out of 3 successfully amended so far, I pretty much refuse to accept a contract that is not to my satisfaction and it's this approach I take with the agencies. I'm not scared to walk away if necessary but that's how I roll lol, it all depends on how much they need you in some cases and they don't do anything voluntarily there's always some arm twisting involved. I've known contractors to accept contracts and then just ensure their working practices are outside IR35.

[MyUserName]

I have, it was easy. I said I could not sign it unless they changed the contract due to my insurance company's rules. They changed it.

[TheFaQQer]

I have, it was easy. I said I could not sign it unless they changed the contract due to my insurance company's rules. They changed it.

This.

I always get Qdos to do the reviews, and if they fail, forward the email over to the agency. I've never had any issue with any of the clauses being re-worded - by this stage, everything else is normally in place and nobody wants to start all over again.

[tractor]

..

In more than 20 years contracting, I've never had an agent refuse to make changes. One of the key negotiating points is that you get an offer first, then their mind is a little more focused.

Caveat, after being offered an extension on my last contract, La Fosse decided they wanted me to fill in a questionnaire relating to changes made in this year's finance act for the self employed. They also wanted my accountant to fill one in too and it was very intrusive and as it related only to the self employed, I refused. They wouldn't budge so I walked and let it lapse. Que sera /shrug it was only 6 weeks anyway and the world cup is on

[TheFaQQer]

If the agency won't budge on their contract details, then I only see one option: Ask the end client to sign a letter confirming they agree to let you ..... substitute, use your own equip etc.... once you're on-site.

Your one option is to walk away and find another role where you can agree the contract terms. Suggesting to someone at the client that you can deviate from the contract in such fundamental matters isn't a sensible scenario - you have no contract with them, so there would be no legal basis for them allowing you to deviate from your contract with a third party.

[SarahL2012]

I always get B&C to check agency contracts for IR35 compliance, but also check myself that I am happy with more commercial terms (eg caps on liability for insurance purposes etc). Never had an agency refuse to make alterations, but I'll walk away from job if I'm not happy with contract and they don't want to take that risk with client.

Confirmation of arrangement letter more tricky with larger firms. On the whole I've found managers at client don't like signing because they are worried it is committing company to something. Current client have passed it over to Legal for review & I'm not sure it will ever see the light of day again ........

[Qdos Contractor]

I would say it's quite rare now for an agency to refuse to change a contract for IR35 reasons. The majority of contracts that we 'fail' will subsequently be amended.