QDOS review leaning towards 'inside' - suggested changes to make 'outside' QDOS review leaning towards 'inside' - suggested changes to make 'outside'
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  1. #1

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    Default QDOS review leaning towards 'inside' - suggested changes to make 'outside'

    Hi all

    Had a QDOS review on a contract and they suggested the following changes would be required to secure an outside determination. They stated:

    "Clause 9 - The right to provide a substitute is one of the most important tests in determining IR35
    status. It is therefore crucial there is a strong clause within the contract to reflect the fact that the
    contractor can supply a substitute. This clause is quite restrictive and I would suggest that it is
    amended to read:

    The Contractor may assign or provide a substitute to carry out the obligations and benefits of this agreement provided that:
    -The terms of the assignment reflect the terms of this Agreement
    -The specified services remain as detailed in this Agreement
    -The Client possesses the right to decline a substitute provided by the Contractor if the Client is not satisfied the replacement Representative possesses the necessary skills, expertise and resources to satisfactorily deliver the specified services
    -The Client being satisfied the replacement Representative will comply with all rules and regulations as specified in this Agreement insofar as they are applicable to independent contractors
    -The Schedule will be amended accordingly and re-signed by the Company and The Contractor"


    I had a look and my contract says:


    "The Contractor may assign or propose a substitute to carry out the obligations and benefits of this agreement provided that:
    -The terms of the assignment reflect the terms of this Agreement
    -The specified services remain as detailed in this Agreement
    -The Client possesses the right to decline a substitute proposed by the Contractor, prior to engagement, if the Client is not satisfied the proposed Representative possesses the necessary skills, expertise and resources to satisfactorily deliver the specified services
    -The Client being satisfied the proposed Representative will comply with all rules and regulations as specified in this Agreement
    -The Schedule will be amended accordingly and re-signed by the Company and The Contractor"


    So it's only that "prior to engagement" part in the 3rd part that has been suggested to be removed (why would it matter it they can reject once engaged, if they're not suitable?) and to add "insofar as they are applicable to independent contractors" in the 4th part that I can see as changes. I don't understand how this really changes anything in terms of the inside/outside IR35 point.

    Any ideas?

    I will also have my working practices reviewed as these apparently weigh more heavily and I'm fairly confident this will come back as 'outside' - especially as a colleague doing exactly the same role has had a full QDOS review (i.e. both contract and working practices; I only initially had the contract review) come back as outside - although he is via a different agency so his contract is slightly differently worded.

    Thanks
    Ross

  2. #2

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    It's your client that should be deciding your status from now on in. Not you.
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    Quote Originally Posted by northernladuk View Post
    It's your client that should be deciding your status from now on in. Not you.
    Depending on the size of the client...

  4. #4

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    Yes I know that (and my client is large enough) but HR are useless and still haven't decided.

    Ideally I'm hoping to get a QDOS 'outside' evaluation to 'support' the client into making the correct outside determination.

    If they determine I'm 'inside' for some reason, I at least want the 'comfort' of having QDOS on my side (I have the insurance).

    Either way, I can't understand why QDOS's recommended changes really matter?

  5. #5

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    Quote Originally Posted by mrrossi View Post
    Yes I know that (and my client is large enough) but HR are useless and still haven't decided.

    Ideally I'm hoping to get a QDOS 'outside' evaluation to 'support' the client into making the correct outside determination.

    If they determine I'm 'inside' for some reason, I at least want the 'comfort' of having QDOS on my side (I have the insurance).

    Either way, I can't understand why QDOS's recommended changes really matter?
    They have decided, they are just yanking your chain until last moment in hope you have no options other than stay under IR35


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