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Is this a breaching the contract by the agency and company I work for?

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    Is this a breaching the contract by the agency and company I work for?

    Dear Contractors,

    I have a problem and I decided to ask you guys for help. I have a limited company and the current situation stresses me a lot and no one is able to provide me with an advice.
    Long story short – I have a contract for limited amount of hours to deliver a project. Contract starts in January, ends in December, hours cover 11 months so usually I take December off because the company wants to renew contracts in January next year anyway.

    Oral agreement with my current company which I work for, doesn’t match which what I actually do. Even my job task isn’t relevant - I am a “project support” to a massive project, which I am solely responsible for – so who do I support? I don’t consider myself being a support at all because there is not a single person who works on my project but me and the project is very independent (doesn’t cover any other areas or projects). Agreement (oral one, because in my contract there is literally nothing), was that as a contractor I work each year with one new project which I must deliver on time (target – 100%). No one else is involved in this project. The thing is that I was involved in so many additional things that I finally called the agency and said that if the company wants me to spend my time on other things, then increase my hours because how can I still be responsible for providing my project on time if I am delegated to another tasks? So what they did is basically emailed my manager and they established there won’t be any target for me this year. At that stage I decided to clarify what in that case the area of my responsibility is, because again – it wasn’t the agreement that I will be working with something different than my current project.

    My contract has been renewed few times already and I had an episode when I was trying to clarify with my agency what the area of my responsibility exactly is. I was supposed to work with one project and I was working with six. Pressure was horrific and my agency didn’t support me at all so to avoid further problems at that time I bite my lip and let it go.

    Currently management has changed (this is “my” third manager within the last 2 years so you can imagine every new manager has different expectations and different understanding of working with a contractor) so I decided to finally sort things out, because I had an episode of being literally like assistance/secretary for one of managers which was unacceptable for me. Also IR35 started worrying me. I don’t understand level of my independence anymore.

    Anyway, when I contacted my agency, I listed all things I’ve been doing and I requested this to be reviewed by them, to adjust my job title/task description etc. What worries me is that when I asked them to define area of my responsibility (my understanding was it was my main project), they replied:
    "Ultimately, clients will want to engage with a contractor for a specific reason, but will often move them internally onto other projects and doing other roles. This wont make your contract invalid or have any legal affect.”

    Is this a normal attitude? My impression was that I am a separate company and I am responsible for delivering the project I am contracted to. But when it is convenient for them, I am also an assistant, secretary and I work with whatever they want me to. Even if I don’t have the target this year, I am not happy to adjust myself to literally whatever the company wants me to do. I believe that’s the point of being a contractor – I am solely responsible for my project and without my approval of adjustments in my contract this mustn’t be changed just like that.

    One more thing – I have a contract for hours which cover 11 months to do my project. But as I mentioned, I am also delegated to another tasks. When contract is renewed, it is expected from me to do the job from that 1 unpaid month, when I wasn’t at work. Is that legal at all to require something like that to be done? So basically I go back in January and I must do the work for December.
    I am expecting now my manager to prepare the job description for me because as I mentioned also IR35 worries me – I have doubts if I finally work as independent contractor or I am a support, or something else.

    I am unable to attach terms and conditions of my contract as this is my firs post.

    Could you please let me know what you think about all of this?
    Thank you in advance.

    #2
    OK, you've said a lot in there, some of which is confusing.

    1. You have a contract - is it a daily rate? Is it for a set number of days?
    2. You mention a target - do you get a bonus based on completing the target?
    3. Is the client signing your time sheets and paying your invoices on time?
    4. Why do you care what the job title/job description is? That's the sort of thing permanent employees care about.
    5. If you were to work more hours than is on the contract, will the client pay?

    But ultimately, if you're in a contract that is stressing you out, you should walk away and seek a different one.
    …Maybe we ain’t that young anymore

    Comment


      #3
      I take December off because the company wants to renew contracts
      Eh?

      Oral agreement with my current company which I work for
      Isn't this your Limited?? Or do you mean your client?

      Even my job title
      You have a job title?? Gulp....

      there is not a single person who works on my project but me
      Eh?

      The thing is that I was involved in so many additional things
      So you are under Direction and Control and your IR35 status is stuffed.
      How long have you been there?

      "Ultimately, clients will want to engage with a contractor for a specific reason, but will often move them internally onto other projects and doing other roles. This wont make your contract invalid or have any legal affect.”
      They are correct but it puts the gig inside IR35.

      I am expecting now my manager to prepare the job description for me because
      More IR35 insideness.....

      as I mentioned also IR35 worries me
      It should.

      You're inside IR35. You are a disguised permie and just another headcount at your clients so really up to you to suck it up or leave.
      'CUK forum personality of 2011 - Winner - Yes really!!!!

      Comment


        #4
        Originally posted by Esp View Post
        One more thing – I have a contract for hours which cover 11 months to do my project. But as I mentioned, I am also delegated to another tasks. When contract is renewed, it is expected from me to do the job from that 1 unpaid month, when I wasn’t at work.

        eh?

        Comment


          #5
          Originally posted by WTFH View Post
          OK, you've said a lot in there, some of which is confusing.

          1. You have a contract - is it a daily rate? Is it for a set number of days?
          2. You mention a target - do you get a bonus based on completing the target?
          3. Is the client signing your time sheets and paying your invoices on time?
          4. Why do you care what the job title/job description is? That's the sort of thing permanent employees care about.
          5. If you were to work more hours than is on the contract, will the client pay?

          But ultimately, if you're in a contract that is stressing you out, you should walk away and seek a different one.
          1 - Hour rate, set for a number of hours, limited to 40 hours per week
          2. No
          3. Yes - my manager signs the timesheet, I raise an invoice to the agency.
          4. Well, I want my CV to be prepared for the future and if I ever use my agency again, which is massive, I want to keep things right.
          5. I was told I don't get more hours, just what is predicted in my contract.

          Comment


            #6
            Originally posted by jmo21 View Post
            eh?
            Ok, let me explain. I have a contract for January-December (12 months). My contract predicts hours which cover 11 months. It means one month per year is for me unpaid. If my current client wants to renew the contract and I go back to work in January, they expect me to do the job for December, where I wasn't at workin and obviously I wasn't paid for.

            It's because I work with current project and I also have those "additional things" I work with (and this is the problem I mentioned about, those "additional things"). If it was just my project - it's fine, I am happy to have 11 months for it. But if I sign another contract for project for another it is weird they want me to also do additional things for the December last year which I wasn't paid for.

            Comment


              #7
              Originally posted by northernladuk View Post


              So you are under Direction and Control and your IR35 status is stuffed.
              How long have you been there?


              They are correct but it puts the gig inside IR35.


              More IR35 insideness.....


              It should.

              You're inside IR35. You are a disguised permie and just another headcount at your clients so really up to you to suck it up or leave.
              To OP - this is all correct. If you are investigated and the information you've provided here is found by HMRC you will be found inside.

              If you're not paying tax as inside you must:
              a) put enough aside just in case you need to pay all that lovely tax,
              b) buy TLC35 insurance from QDOS to provide some protection and £50k of cover.

              If you do get investigated then FFS don't talk to HMRC just get straight onto QDOS and let them handle all the communications.
              See You Next Tuesday

              Comment


                #8
                Originally posted by Lance View Post
                To OP - this is all correct. If you are investigated and the information you've provided here is found by HMRC you will be found inside.

                If you're not paying tax as inside you must:
                a) put enough aside just in case you need to pay all that lovely tax,
                b) buy TLC35 insurance from QDOS to provide some protection and £50k of cover.

                If you do get investigated then FFS don't talk to HMRC just get straight onto QDOS and let them handle all the communications.
                Too late for TLC35 surely?
                'CUK forum personality of 2011 - Winner - Yes really!!!!

                Comment


                  #9
                  Originally posted by northernladuk View Post
                  Too late for TLC35 surely?
                  I'm not sure. If it is then get IPSE+ for the legal cover.

                  I think Qdos once said on here they'd cover people on already started contracts, and if they won't cover people who are basically disguised employees then what is the point in it at all?

                  I don't have TLC35 as I'm pretty safe. If I thought I was not so safe I'd buy the bugger straight away.


                  EDIT:::::

                  This Policy Will Not Cover
                  Professional fees incurred:
                  >>>>snip<<<<<
                  2. Where any circumstances of a claim are known of at the inception of this Policy or the time a policyholder was declared for inclusion under this Policy about which the policyholder or appointed consultant knew or ought
                  reasonably to have known was likely to give rise to a claim under this policy
                  the key bit is about being likely to give rise to a claim.
                  I could argue that being a slam-dunk inside IR35 isn't likely to raise a claim. But if you;ve got a letter from HMRC before you buy the insurance then that is 'likely to give rise to a claim'
                  Last edited by Lance; 9 February 2018, 14:18.
                  See You Next Tuesday

                  Comment


                    #10
                    Hi guys,

                    Ok, thank you for all replies. The thing is that the agency arranged the limited company to be set up for me, when the contract was offered. They didn't advise umberella or anything else (btw would imbrella solve the problem?). So my understanding was limited company and contractor benefits make sense.

                    Now I am stressed that I will have to pay the tax for my previous contracts (HMRC has right to investigate 6 years back, even if the company has been closed, right?). I started reading about contractor rights and IR35 this year.

                    Is there anything I can do to protect myself knowing, that I was supposed to work with one project and deliver it, while my client was expecting me to do more having my agency's blessing? I have emails which confirm all of this.


                    I wasn't aware of my rights, I didn't have knowledge about the law and I had to rely on my agency, which assured me everything my client has been doing was right. I already highlighted few months after the first contract started, that what I've been doing was not the agreement, but I carried on, because I was assured my client had right to do that. This time my agency allowed my manager to create the task description... I have an impression that this is a massive violation of my rights while I was seeking for an advice form my agency. If I have to pay the full tax - fine, I will, but I believe my agency and client together should be responsible for what they have been doing too. Especially, that this affects other contractors in our office too and probably within a whole company.

                    Answering some questions, as I have a problem with submitting repies with quotes:

                    1. You have a contract - is it a daily rate? Is it for a set number of days? - hour rate
                    2. You mention a target - do you get a bonus based on completing the target? - no
                    3. Is the client signing your time sheets and paying your invoices on time? - yes, client signs timesheets, I raise invoices to my agency
                    4. Why do you care what the job title/job description is? That's the sort of thing permanent employees care about. - I want to have in my CV something relevant to my role, at least right task description
                    5. If you were to work more hours than is on the contract, will the client pay? - They don't pay for overtime so I am not forced to stay
                    Last edited by Esp; 9 February 2018, 15:00.

                    Comment

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