In a situation where an employee leaves his or her job in an organization, but the organization wishes to retain its expertise, perhaps to assist in an ongoing project, a consulting agreement may be proposed. In such a situation, it is important to consider the potential risk of their employment continuing and thereby protect their employment rights, regardless of the written advice agreement. It is important that any replacement rights are fully respected. In cases where the person has accepted an obligation to provide these services but is unable to do so and does not bear the cost of providing a replacement, limited or occasional delegation power is still generally considered compatible with a consulting agreement. Ultimately, one of the most important points to consider when developing the advisory contract is whether the written terms correspond to what will actually happen in practice. In the event of a dispute over the status of the person, a court will focus not only on the written terms of the agreement, but also on the daily models and behaviours of the consultant and the company to determine whether the agreement was indeed that of a consultant. Our design masterclass series continues by looking at consulting agreements. In this article, we focus on the factors that need to be considered and addressed before we begin to develop such agreements. In deciding whether a counselling agreement is appropriate, therefore, the following questions must be taken into account: if benefits are required to be provided by the person, there is only the risk that the person will have the status of an employee or worker rather than a truly independent employee. It is therefore important, when drawing up a consultancy agreement, to include in the agreement a right of substitution which shows that there is no personal assistance from the adviser. It does not matter whether the person can personally decide to provide the services; The question is whether he is legally obliged to do so. If the answer to the above questions is no, then a board agreement can be used.
However, it is important to ensure that the written terms of the agreement accurately reflect the practical regime that exists between the parties. The first aspect is whether a board agreement is really appropriate. This will depend on the individual`s intention to be a real consultant or whether the relationship is closer to a job, in which case an employment contract should be used. If the answer to the above questions is yes, then the report will be an employment relationship and a consultant agreement will not be appropriate. Another factor to consider in the development of these agreements is whether the consultant can make his services available to other companies at the same time. As a general rule, it is advisable to allow a consultant to provide services to several companies, as this indicates that it is a self-employed status and not a salaried worker, even if such work may be limited with regard to non-competition with the company. When developing advisory agreements, it is important to limit the control that the organization retains over the individual. If it is a real advisory system, individuals should be free to decide where and when they work and how they act. When a company is in a situation where it is considering reintegrating a person who previously worked as an employee, it must ensure that the continuity of the individual`s employment does not continue. Continuity may be interrupted if there is some time between the end of employment and the start of the advisory activity, this period being a full week ending on a Saturday.