Waiver clause

[redman123]

Testing

[eek]

Have you actually read the clause.

It says there will be an determination

Found this waiver clause suspicious from agencys draft contract post April. Are they trying to push all potential risk on the supplier?. Your thoughts?

From 6 April 2020, XYZ will issue the Supplier with a status determination regarding IR35 in advance of the commencement of each Assignment (or in advance of 6 April 2020 in relation to an Assignment which began prior to 6 April 2020 but which will not cease until after that date). The determination will be carried out by either XYZ or XYZ’S client depending on who is the “end-client” in relation to the particular Assignment. The status determination decision in relation to each Assignment will be set out in the Assignment Schedule (or, in the case of an ongoing Assignment as at 6 April 2020, in advance).

- you can appeal it

Should the Supplier wish to challenge the status determination, the Supplier should apply in accordance with XYZ’S relevant policy or XYZ’S client’s relevant policy (depending on which party carried out the status determination).

- but if you don't appeal it you have to accept it.

If the Supplier accepts the Assignment, as detailed in the Assignment Schedule, the Supplier will be deemed to have accepted the status determination and agrees to waive any right of recourse the Supplier may have against XYZ and/or any client of XYZ in relation to this. Such waiver does not affect any right the Supplier may have to seek a refund directly from HMRC.

and if you accept it you can't then go back afterwards.

There really is nothing in that clause that is a problem as it doesn't include anything beyond status determination...

And remember HMRC is not going to be chasing you for the money, they will be chasing the agency / end client - if they said you as a supplier could be chased for money owed that would be a different matter but I don't see that in there.

[GhostofTarbera]

Will be the norm, why would they carry the risk and not you?


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[redman123]

Testing

[redman123]

Will be the norm, why would they carry the risk and not you?


Sent from my iPhone using Contractor UK Forum

Because the legislation says so?

[eek]

Thats the thing. The problem in the clause is the bit where it says “.. and agrees to waive..”
Which is interpreted into something like you agree to take on the agency and clients risk.

It's just your right to sue them that you are waiving if the determination was found to be wrong - i.e. you agree an inside IR35 contract and 6 months later someone decides your contract is outside you can't go after the agent / end client for your lost money.

This is a blooming simple clause - once you accept the determination, you can't say it was wrong later...

I take it you are taking an inside IR35 contract? As that would have been useful information to add to your post.

[redman123]

Nope. Wont be taking it

[eek]

Nope. Wont be taking it

But the contract is for an inside IR35 contract isn't it.

1) because that is the clause I would expect to see in it (designed to stop you claiming money afterwards were the determination - you accepted - turned out to be wrong)
2) confirmation means that we can point the next person who asks about a similar clause to this thread.

[IRMe]

It's just your right to sue them that you are waiving if the determination was found to be wrong - i.e. you agree an inside IR35 contract and 6 months later someone decides your contract is outside you can't go after the agent / end client for your lost money.

This is a blooming simple clause - once you accept the determination, you can't say it was wrong later...

I take it you are taking an inside IR35 contract? As that would have been useful information to add to your post.

The draft ESM suggests that the future legislation permits a disagreement to be raised at any point of an engagement, particularly if there is a material change in working practices change. Waiving this right means that should the Supplier discover that the SDS was issued on an incorrect understanding of working practices, they would have no recourse against the Client or Agent to resolve it. Can you actually give away a right to a course of action which is provided by law?

Imagine you accept a gig where you are told it is Inside IR35, only to discover there is irreducible MOO, you can't use staff facilities, you have to bring in your own equipment, and you're not closely controlled. Would you not want to correct that? The method HMRC currently points to is to have that corrected through payroll adjustments, waving this right would remove that primary avenue and create a tax\accounting headache.

[simes]

eek's right.

What the waiver is saying is, once the SDS is made, and you've signed the contract, the agency is then saying if, for example, the working conditions as later experienced make you clearly Outside IR35, the waiver is saying you can't appeal.

This to my mind should be avoided at all costs.

The HMRC has made a big play about the words of a contract Not being enough to secure an Outside result. They have said that the working practices, which can Only be known once in the role for a few months, have to marry up to and reflect the words of the contract. If this element is removed from a contractor's appeals process through such waivers, then this really is a case of bending over and just taking it.

For example, if the SDS says there is MoO, and then you are sent home over Xmas for a furlough, this is clearly exemplifying no MoO. The only way to know this is After you've signed contracts and waivers. By then, it is too late.

Do not sign it.