Pro-rata contract

[johndc31]

Hi guys

Need a little advice on how to tackle this. My contract has come to an end, however the client in the future wants to give me pro-rata work here an there. We are going through an agent.

As I'd like everything to be above board, my client does also, the client is happy to go through the agent for adhoc work still. Any adhoc work I do, I just add it to the time sheet.

However, the agent is wanting to get another contract signed up for 3 months for the adhoc work (possibly more). I'm new to contracting and I'm unsure what I should do or what the contract should look like, the current contract I have has gone through an IR35 review and it was amended accordingly. Any pointers?

I've been looking at zero-hour contracts and whether this is an option?

[northernladuk]

There is very little detail here for quite a complex situation but.....

I'd be looking to cut the agent out here. The handcuff is invalid if it's work the agent don't have the option to bid for. They delivery bums on seats but this piece of work is different so if the client doesn't offer it to the agent he can't pull the handcuff on you. I'd be trying to present the client with an open ended contract for delivery, maybe on call off or on the existing terms which already state that you only get paid for work that you have a signed timesheet for. They are not obliged to give you work already so you are technically in an adhoc work contract, it's just the client is willing to keep you busy 5 days a week at present. You might also try for a call off days arrangement as well. The problem is you've already approached the agent so it's going to be difficult to cut him out now. He's got a pretty good argument he was offered the work so can pull the handcuff. The client might be able to strong arm him and cut him out though. Very situation dependant now.

Lets assume you are stuffed and you have to go through the agent now.

I kinda think signing the same contract you had before but with a new schedule or work wouldn't be a problem. As I said above the client doesn't have to offer you work so you only get paid for the days you do and put on the timesheet so that aspect is already covered. I don't think IR35 will be an issue here due to the work being ad-hoc. Permies certainly cannot work like this so hard to argue you are a disguised permie. You just need to make sure the schedule shows you are providing ad-hoc consultancy. Can't blame the agent for wanting an overarching contract covering all the T&C's, payment schedules etc.

If you are worried about IR35 you could ask them to change the notice periods that both you and client can give instant termination of the contract. I think the client will buy this due to the adhoc nature of the work. Still worth getting it checked by the likes of QDOS as well but working practices really trump the contract and it's going to be very hard for anyone to try argue and adhoc arrangement is anything like employment.

[LondonManc]

A minimum engagement clause would be nice - two days a month that they have to pay for whether they use it or not.

The other side is SLAs - what if you're in a full time contract but they want you in for a week - how are you going to handle that? Have you got a suitable substitute who could keep generating revenue for you?

[ContractorScum]

You may want to look into a more 'traditional' freelance modal and think about a retainer agreement

https://blog.bidsketch.com/sales/fre...ner-agreement/

[Kraut]

I've been in a similar situation a couple of times. There are two ways around it that worked for me.

1. No contract at all. Client sends you requirements for tasks/mini projects and you send them a quote. They accept and you go ahead and deliver (and invoice accordingly; typically 1/3 upfront, rest for milestones; this is very flexible and can be negotiated there and then). Invoicing happens on a milestone/deliverable basis, not hours/days.

2. Agency contract, where the schedule says something along the lines of: up to 5 days/week, subject to availability of the consultancy (your availability). You can add a minimum monthly charge here, which would only be applicable when not enough work was provided. Just be careful not to get tied down with conditions that take away your freedom, because if they don't provide enough work, you'll have to find other income, which will make you less responsive/flexible.

Both options, particularly the first one, allow you flexibility, but also require a bit of trust (will they give you work? will they let you know reasonably far in advance? will they pay on time?)

[Hobosapien]

Get the agency to provide a copy of what the new contract would look like. It may be identical to the previous contract and they only want to sort out a new one as the old one cannot be renewed if already ended.

Then add in any missing beneficial terms to make this 'part time' approach more attractive.

You'll probably want to control availability via the contract terms, so not on call all day every day without additional compensation or any idea when you'll be needed. You could just require x days notice before starting any ad hoc work so can be available or can let them know in advance if it's going to be a problem. Then you can go do other stuff in the meantime.

[johndc31]

There is very little detail here for quite a complex situation but.....

I'd be looking to cut the agent out here. The handcuff is invalid if it's work the agent don't have the option to bid for. They delivery bums on seats but this piece of work is different so if the client doesn't offer it to the agent he can't pull the handcuff on you. I'd be trying to present the client with an open ended contract for delivery, maybe on call off or on the existing terms which already state that you only get paid for work that you have a signed timesheet for. They are not obliged to give you work already so you are technically in an adhoc work contract, it's just the client is willing to keep you busy 5 days a week at present. You might also try for a call off days arrangement as well. The problem is you've already approached the agent so it's going to be difficult to cut him out now. He's got a pretty good argument he was offered the work so can pull the handcuff. The client might be able to strong arm him and cut him out though. Very situation dependant now.

Lets assume you are stuffed and you have to go through the agent now.

I kinda think signing the same contract you had before but with a new schedule or work wouldn't be a problem. As I said above the client doesn't have to offer you work so you only get paid for the days you do and put on the timesheet so that aspect is already covered. I don't think IR35 will be an issue here due to the work being ad-hoc. Permies certainly cannot work like this so hard to argue you are a disguised permie. You just need to make sure the schedule shows you are providing ad-hoc consultancy. Can't blame the agent for wanting an overarching contract covering all the T&C's, payment schedules etc.

If you are worried about IR35 you could ask them to change the notice periods that both you and client can give instant termination of the contract. I think the client will buy this due to the adhoc nature of the work. Still worth getting it checked by the likes of QDOS as well but working practices really trump the contract and it's going to be very hard for anyone to try argue and adhoc arrangement is anything like employment.

Wow, thanks for the advice! For informative. I think maybe an ad-hoc agreement is the best method with instant termination.
To be honest I'm happy to go through the agent. They've always paid on time and their timesheet system and auto invoice helps. They're almost acting like debt collectors for me, as previously I've waited 60 days for an invoice to be paid by going direct.

Great advice though, fell much better now.

[johndc31]

A minimum engagement clause would be nice - two days a month that they have to pay for whether they use it or not.

The other side is SLAs - what if you're in a full time contract but they want you in for a week - how are you going to handle that? Have you got a suitable substitute who could keep generating revenue for you?

thanks for your help!

[johndc31]

I've been in a similar situation a couple of times. There are two ways around it that worked for me.

1. No contract at all. Client sends you requirements for tasks/mini projects and you send them a quote. They accept and you go ahead and deliver (and invoice accordingly; typically 1/3 upfront, rest for milestones; this is very flexible and can be negotiated there and then). Invoicing happens on a milestone/deliverable basis, not hours/days.

2. Agency contract, where the schedule says something along the lines of: up to 5 days/week, subject to availability of the consultancy (your availability). You can add a minimum monthly charge here, which would only be applicable when not enough work was provided. Just be careful not to get tied down with conditions that take away your freedom, because if they don't provide enough work, you'll have to find other income, which will make you less responsive/flexible.

Both options, particularly the first one, allow you flexibility, but also require a bit of trust (will they give you work? will they let you know reasonably far in advance? will they pay on time?)

I'll be taking out a completely new contract elsewhere full time, the ad-hoc work will literally me working on a Saturday. So if they give me zero work, it isn't a problem.