Contract Terms you're uncomfortable with

**eek** · 5 November 2016, 08:48

Originally posted by Illustrious View Post

After the nightmare that was the last gig, I am meant to be starting at a new place on the 10th November which is much closer to home.

I've had the interview and spoken to their technology director and while I was unsuitable for a position they did have open, they felt I could bring something to the table that they needed and offered me a position anyway. This is all being handled by a recruitment agency and I've got the contract in hand but one of the clauses gives me cause for concern. I've never had a contract with this kind of clause in before and after reading some of the goings on at agencies/clients on here I'm pausing for thought.

The contract stipulates that:

No payment will be made to the contractor if the Services are, in the opinion of the agency or Client, unnacceptable. The opinion of the client and/or agent is final and no queries will be made to the client in this regard

Further down the contract there are clauses that essentially waive my rights to take legal action to recover monies owed.

Ordinarily this wouldn't really give me issue since I've been on weekly or fortnightly payment terms with other agents. This time I'm on 28 days.

Perhaps it's my general lack of faith in humanity but I'm worried that I'll get there for a month, 28 days of work, expenses in lodging and travel to be told that they don't think I'm worth the money. Essentially getting a weeks worth of consultation and service for nothing...

I'm going to spend the day thinking about this but is this something that appears in other contracts often? I've never seen one that is so blatantly set out to get out of paying someone; especially to have them waive their rights to recover monies through the court.

Has anyone seen any other contract clauses that have given them cause for alarm

You are opted in by the sounds of it. All you need is to get timesheets signed and if all else fails a court will find in your favour.

**Illustrious** · 5 November 2016, 08:53

Originally posted by eek View Post

You are opted in by the sounds of it. All you need is to get timesheets signed and if all else fails a court will find in your favour.

No I've definitely opted out, it's actually in the pack of documents that I've got stating as such.

It wouldn't worry me ordinarily. Most contracts say something along the lines of they'll terminate up to 7 days if you're unsuitable but this one makes no effort to tie it down to a timescale. So they could effectively get a month of work and put me out the door under the guise of being incapable of doing the job.

**eek** · 5 November 2016, 09:15

Originally posted by Illustrious View Post

No I've definitely opted out, it's actually in the pack of documents that I've got stating as such.

It wouldn't worry me ordinarily. Most contracts say something along the lines of they'll terminate up to 7 days if you're unsuitable but this one makes no effort to tie it down to a timescale. So they could effectively get a month of work and put me out the door under the guise of being incapable of doing the job.

Just because the paperwork claims you are doesn't mean you actually are. Only 1 agency has ever managed to do an opt out correctly...

If you are concerned the only thing you can do is speak to the agency abou the clause making clear that you don't understand it, aren't happy with it and will be speaking to the technical director personally to apologise if it isn't sorted (so they can't say you've pulled out because of something else).

I've usually found agencies are happy to change clauses when you state my lawyer is unhappy with this clause exactly what do you mean by it and how is it used and if you are happy with the explanation get it in writing if not walk away.

**Illustrious** · 5 November 2016, 10:36

Originally posted by eek View Post

Just because the paperwork claims you are doesn't mean you actually are. Only 1 agency has ever managed to do an opt out correctly...

If you are concerned the only thing you can do is speak to the agency abou the clause making clear that you don't understand it, aren't happy with it and will be speaking to the technical director personally to apologise if it isn't sorted (so they can't say you've pulled out because of something else).

I've usually found agencies are happy to change clauses when you state my lawyer is unhappy with this clause exactly what do you mean by it and how is it used and if you are happy with the explanation get it in writing if not walk away.

I would have thought that it was in the agents best interest to ensure that a candidate opting out has definitely done so. I'll have to work in the assumption that since I've indicated I'll opt out and they have told be that I am opted out that that's my current status for now.

Well even though it's Saturday I've text and emailed the agent just to let him know that the clause is giving me cause for concern.

I've told him what I've said here I said here; if they said that within 7 days they would determine my suitability/capability for the role I'd be more than happy in those terms. But when the clause is ambiguous to what exactly the criteria they measure this by and give no timeframe to make such decisions then I'm afraid that i won't be able to accept the role.

I can't take the risk that they'll can me after 4 weeks, pay nothing and have waived any right to legal recourse.

**MrMarkyMark** · 5 November 2016, 10:57

Originally posted by Illustrious View Post

I would have thought that it was in the agents best interest to ensure that a candidate opting out has definitely done so. I'll have to work in the assumption that since I've indicated I'll opt out and they have told be that I am opted out that that's my current status for now.

Your assumption is likely to be incorrect, as most agencies, just like yourself, do not understand the legislation.

**SueEllen** · 5 November 2016, 13:14

Originally posted by Illustrious View Post

I would have thought that it was in the agents best interest to ensure that a candidate opting out has definitely done so. I'll have to work in the assumption that since I've indicated I'll opt out and they have told be that I am opted out that that's my current status for now.

Completely wrong - you need to presume agencies know nothing about the law until they prove to you otherwise and even then because they won't be a judge on your case with them (if you unfortunately end up having one), take what they say with a pinch of salt.

Originally posted by Illustrious View Post

Well even though it's Saturday I've text and emailed the agent just to let him know that the clause is giving me cause for concern.

I would turn the contract down if it had that clause in it and the agency refused to negotiate. As long as you don't go on the client's site until the contract is sorted to your satisfaction you will be fine.

Originally posted by Illustrious View Post

I've told him what I've said here I said here; if they said that within 7 days they would determine my suitability/capability for the role I'd be more than happy in those terms. But when the clause is ambiguous to what exactly the criteria they measure this by and give no timeframe to make such decisions then I'm afraid that i won't be able to accept the role.

I can't take the risk that they'll can me after 4 weeks, pay nothing and have waived any right to legal recourse.

I've been told by different solicitors and a barrister just because it is in a contract it doesn't make it legal, more so if you haven't used a lawyer e.g. someone who is a solicitor on the SRA or a barrister/advocate at the bar to review the contract.

Also the fundamental rights of people and companies in law cannot be overridden - in other words you cannot tell someone they cannot take legal action against you. It is up to the court to decide whether your case should progress or be thrown out on it's merits not the other party.

This is a bit of a summary on contracts linky

**ShandyDrinker** · 5 November 2016, 15:48

Given what the OP has said it really does depend on the attitude to risk.

I would run a mile from that contract as it's heads they win and tails you lose.

**Lance** · 5 November 2016, 16:31

Originally posted by SueEllen View Post

This is a bit of a summary on contracts linky

That's a really good link. Thank you.

If I read it correctly, it would be possible to start on site, without a written contract, based on an email exchange with the day rate and start confirmation date.
And if you agree, in an email, subject to your own Ts and Cs.
The agent is then tied into your contract.

I'm not recommending that. But a few people seem to have started their work without a contract so this does offer some protection. Although I reckon an agent with half a clue would be alerted to your email offering your Ts & Cs.

**SueEllen** · 5 November 2016, 17:26

Originally posted by Lance View Post

That's a really good link. Thank you.

Yeah maybe agents should read point 9.

Originally posted by Lance View Post

If I read it correctly, it would be possible to start on site, without a written contract, based on an email exchange with the day rate and start confirmation date.
And if you agree, in an email, subject to your own Ts and Cs.
The agent is then tied into your contract.

I'm not recommending that. But a few people seem to have started their work without a contract so this does offer some protection. Although I reckon an agent with half a clue would be alerted to your email offering your Ts & Cs.

If you do you have a weaker negotiating position.

And you may still have to walk away.

Some agencies state they won't pay you without an agreed contract, so that would leave you having to take legal action to get the money for the work you did. (Obviously you would have got a signed timesheet of your own making from the client plus other proof.)

Contract Terms you're uncomfortable with