A compensation clause in the agreement could protect the company from the resulting losses: there is little risk that the inclusion of compensation in the second HMRC item, when considering the agreement, could suggest that there are some doubts about the consultant`s employment status. However, this risk is offset by the economic benefits of such compensation. The person concerned is the identified or identifiable living person with personal data (section 3(5), DPA 2018). As with the 1998 CCA, an advisor (or the person with whom the advice is conducted through a service company) will be a “concerned person” and the client will be a “data manager” within the meaning of the 2018 RGPD and CCA. As a result, clients must process their advisors` personal data in accordance with the RGPD and the 2018 DPA. Next month, we will publish the third and final article in the series on the development of consulting contracts. The focus will be on common problems related to these agreements, in particular the effects of the IR35, including restrictions on the adviser`s ability to work elsewhere and restrictive agreements. Historically, advice agreements may include clauses by which the advisor agrees to the client to retain and process his personal data. However, according to the RGPD, this type of general consent is no longer as useful as it can be revoked at any time.
If the advice agreement imposes detailed and/or restrictive obligations on the advisor, this may indicate, as a precautionary measure, a level of control indicating that the advisor is in fact an employee or a worker. For the same reason, the clause should not include employment-related benefits, such as leave rights/wages, and specify that the counsellor is not paid for a period during which services are not provided. B for example because of the consultant`s poor health. Under the RGPD, councillors have rights as individuals. The company, as the processing manager, must provide its advisors with a data protection statement indicating what the company`s personal data is about them, how and why that information is being processed. This is a proven method if the advice agreement refers to this declaration of confidentiality and confirms where to find that communication.
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