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
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
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