Agency refusing to alter clause

**Project Monkey** · 5 September 2014, 14:50

That's a tricky one. No problem informing either client or agent in writing, but their insistence on an "agreement" is worrying. Makes me wonder how this would affect any MOO clauses.

**TheFaQQer** · 5 September 2014, 15:08

I wonder whether

“It shall not fail to provide the Services at any time during the Contract Period, whether by reason of Holiday or other absence (save illness) without the Clients prior agreement which will not be unreasonably withheld.”

would do it.

I have no problem in discussing my availability with the client. I have never sought their approval, though. I have never discussed my planned absences with the agency before - if they rang me, I might say "oh, I'm off on holiday for a couple of weeks" as a chatty point.

If you can't get any agreed wording, then you are down to a handful of options:

walk away
accept the contract and go inside IR35
accept the contract, go outside IR35, save the money just in case there is an investigation
accept the contract and stick all the money in a pension anyway
accept the contract, go outside IR35 and hope for no investigation

The choice is usually a combination of age, attitude to risk, and confidence of finding a new role.

**SueEllen** · 5 September 2014, 15:24

The clause may be in the upper contract between the client and agency.

I had a similar clause in a contract and while lots of clauses had been removed/altered this one was left alone. In my case the agreement didn't have to be in writing.

What happened in practise is that for short absences I just said to the client I'm of to do x due to y. For longer holidays I just asked when the deadlines were and made sure I took time off when it didn't impact the project.

In regards to informing the agency that was a waste of time. The first time I deliberately did it and the agent's response was "We don't care."

The clause seemed to be added to help the agency and client get rid of contractors they didn't like or went on a holiday for over a month.

**CheeseSlice** · 5 September 2014, 16:14

This clause is meant to be in the context of the LTD company entity (the Supplier), however they then talk about approving absences, which can only be applied to a worker. This is fairly sloppy IMO.

I would say that unless the clause is completely removed, or replaced with something that is only in the context of the LTD company, and not making further reference to 'approval of absence' (i.e. relating to a person), I think it would imply employment between the end client and worker.

They really just need to put some kind of wording about non-delivery by the Supplier, and what may happen if work is not delivered. Or if the provision of service is important (rather than delivery) - state that Supplier will provide services during the agreed service hours, with any periods of non-service not exceeding a certain length of time.

edit: If this was me I would absolutely wait for QDOS to explain the implications further. It sounds unusual they wouldn't have put an explanation or provided alternative wording. Maybe they accidentally left that off the report.

disclaimer: I'm just a contractor, not an IR35 expert or contract reviewer.

**Cenobite** · 5 September 2014, 17:15

Originally posted by Tasslehoff View Post

I fired them across to my agent, 2 were quite minor wording changes (both about RoS) which they were fine with.

Any chance of naming the agency?

**SpontaneousOrder** · 5 September 2014, 20:23

My contract has the same (don't have to tell agency though - only need clients written permission). Qdos passed it fine but suggested they changed the words 'annual leave'.

I just ignore it and make sure I tell them I'll be on holiday at least a month in advance. That way I can just bin the gig if they don't like it. The reality is that the pace at client co is so slow that it's never going to be an issue for me.

**tractor** · 5 September 2014, 20:23

...

Don't forget if you can prove either no D & C, No MoO or unfetttered RoS, the contract would likely be a 'pass' in respect of IR35, you only have to prove one to be outside.

**CheeseSlice** · 5 September 2014, 22:56

Makes me wonder if clientco has been stung in the past by a rogue contractor that took 2 months of holiday during a 6 month contract.
Why else would they go to such lengths and put such a crappy clause in the contract?

**BolshieBastard** · 6 September 2014, 09:28

Originally posted by Tasslehoff View Post

Hello!

I have just had my contract reviewed by QDOS which failed on 3 points.

I fired them across to my agent, 2 were quite minor wording changes (both about RoS) which they were fine with.

However the below clause was highlighted but no alternative wording provided by QODS which I assume means they need to remove :

“It shall not fail to provide the Services at any time during the Contract Period, whether by reason of Holiday or other absence (save illness) without the Clients prior written agreement. The Supplier shall notify “Agency” in writing of any such agreed absences”

My agency have refused to remove without my Client first saying that’s fine. I can’t see my client being particularly happy for me asking to basically not turn up, without any notice. I mean if I employed a builder and he did not turn up etc etc..

Obviously I have replied to QDOS asking them for their advice. But I thought I would get your advice (and the anger/pity/chargin of NLUK obvs)

If you had used Bauer and Cottrell, they negotiate on your behalf unlike QDOS.

End of the day the choice is simple if they wont change it. You either suck it up or decline.

Agency refusing to alter clause