Sigh. Contract wording wrangles, once again.

[MaryPoppins]

I have been offered an extension on my current contract. I had numerous issues when I read the original contract before I started initially, and had various wranglings with the agent over these - I am opted in, and as such had struck out some clauses (as below!). My "new" contract for the extension contained the same clauses, so once again, I struck through, signed, and added a covering letter explaining each:

The contract is made up of two sections, both which require a signature according to the agency. The second of which has a statement 'I am opting out of the EAA Regs 2003 ("the regulations") and accordingly the provisions of the Regulations will not apply to any services provided by me.' I did not sign this as I actually wish to be opted in. Moreover, I pointed out to them that it is a contravention of the act for agencies to require a consultant to opt out. Duh.

The handcuff clause is 12 months. I parroted back the usual gumf that comes with being opted in.

A clause states that the agency will withhold payment if an authorised timesheet is not produced. Again, struck through.

Another clause states that any substitute I provide will be opted out of the EAA Regs. Again, struck through.

They have come back to me stating that they 'cannot accept' the contract with the changes I've added. Their 'legal department' is reviewing it as we speak apparantly. Will I now be offered a less IR35 friendly contract, or can they tell me that if I don't sign the contract as is, I will not be extended?

[TheFaQQer]

Strange - I would have thought that they would just have done a new schedule which says when you will be working, and the rest would be the same as the original one, since it's the same client.

Of course, you could just ignore the new one, and keep working - then you would be working to the original terms and conditions.

It depends how much you want to be there, and how much they need you. The agency could quite easily say "we're not going to do this" and walk away, or you could walk away. However, their legal people should be able to get to a reaonsable point.....

I had the same thing a couple of years ago - I opted in (before starting the gig) and they would only offer an IR35 unfriendly contract, or force me to opt out (which they can just about do, since they aren't making you opt out, they are just making it so bad that you feel you have to do it!). It was only when I refused the contract and said "do you want to ring the client, or should I do it to explain?" that we got somewhere and they agreed to my terms and conditions.

I would suggest to them that the contract should be identical to the one that you are currently on. If they are still resistant, speak to the client and explain that the agency are being a bit silly at the moment, and there is a chance that you will have to leave if you can't get them to accept the new wording (explain that it's identical to the current one). Then the client might get involved and sort the agency out for you.

Best of luck with it.

[MaryPoppins]

Part of me wanders whether I should have just signed it and kept quiet - surely if I am opted in then things like the handcuff clause etc arent enforceable, regardless. I do sort of need this contract really, as I have recently found out I'm pregnant, and this location and duration is ideal. So they kind of have me over a barrel. Ta though FAQ

[ratewhore]

Of course, you could just ignore the new one, and keep working - then you would be working to the original terms and conditions.

Possibly, possibly not. MP has been made aware of the new t's and c's so, by taking the extension, she could be subject to them. Legal advice would clear that up.

In any case, congrats MP!!!

[MaryPoppins]

Hm, the covering letter with the contract does state that if I will be working to the new T&C's should I continue past end date, regardless of whether contract is signed or not.

Thanks ratewhore, still not quite at the 'excited' phase yet, more totally bewildered and terrified!!

[Beefy198]

Typical agency behaviour regarding opting in. Truth is, they haven't spoken to their legal guys at all IMO.

Telling you that you 'have' to opt out is wrong but unfortunately prevalent, and from reading your post I can bet you anything you know more about it than they do.

I would do what TheFaqqer did with his old client - explain to them the issues you're having. If they want to keep you then they'll add a bit of weight to the proceedings.

[TheFaQQer]

Typical agency behaviour regarding opting in. Truth is, they haven't spoken to their legal guys at all IMO.

Telling you that you 'have' to opt out is wrong but unfortunately prevalent, and from reading your post I can bet you anything you know more about it than they do.

I would do what TheFaqqer did with his old client - explain to them the issues you're having. If they want to keep you then they'll add a bit of weight to the proceedings.

The key thing here is that the agency is NOT forcing anyone to opt out - it is MP's choice to sign the contract or not. They will just offer an incredibly unfriendly (in terms of IR35) contract if you don't opt out. Mine named me personally, named me as personally liable, had no substitution clause, until I argued it.

If they explicitly say "you must opt out" (and put it in writing), then you should complain to DBERR about it - they WILL investigate the agency. I know because an agent told me at one stage that they had just been through some retraining about the legislation. I also know because I had complained to DBERR about an email I'd had from same agency which said "Please note that our candidates are required to opt out."

[Beefy198]

Sanderson plc is one of those, they even put it on the letter that comes with the contract....

Anyway, I meant "forced" in exactly the sense you state there - they will make things pretty difficult for you. Most people would just sign it to save the hassle

[TheFaQQer]

Sanderson plc is one of those, they even put it on the letter that comes with the contract....

Anyway, I meant "forced" in exactly the sense you state there - they will make things pretty difficult for you. Most people would just sign it to save the hassle

My argument was with Ajilon.

They didn't understand that since I'd already interviewed for the job, I'd been introduced to the client, therefore I couldn't opt out even if I wanted to...

[NotAllThere]

Call their bluff.