What If Agency Doesn't Agree to Amend the Contract?

[Dynamic]

I sent my contract to be reviewed by an assessment center and it failed IR35.

In the contract with regard to the substitution, it says that "The consultancy (me) should give 7 days notice in advance to introduce a substitution and the agency or client in its sole discretion can refuse any substitute"!

The assessment center said I should be removing this sentence and instead adding the following:

“The Consultancy reserves the right to replace at any time and Representative with another Representative. The Consultancy agrees and acknowledges that where a Representative is unable to perform the Services and it intends to replace the Representative, the Consultancy shall ensure that with regard to the substitute temporary worker it shall comply with clause 5,6 and 7 of this agreement. The Employment Business may reject the proposed substitute temporary worker if in their reasonable opinion the substitute does not possess the necessary skills, qualifications and experience to complete the services.”

Which gives me the right of substitution.

I asked the agency to add it in the contract, however, he refused to amend it saying we send what we have to all contractors and they all have signed it!

I insisted again but what could I do now if they don't amend the contract as they say?

1) It's not right lawfully to continue working for the client without any signed contract, is it? not sure.
2) If I sign the contract, what happens in the future with regard to IR35? 100% caught?
3) If I don't sign the contract, I may have to look for another contract which may take a month it took 3 golden weeks to find a contract.
4) How to push the agency to amend it as mentioned above? they just want to have more control but that's against IR35.

Please advise.

Thanks,

[cojak]

If they refuse to change it you refuse to accept the contract and walk away.

Unless of course you are already working for the client then you have already accepted the contract by default.

That's it really. You can't push them anymore than you have.

[cupidstunt]

Personally I would take out the relevant insurances for investigations and penalties and just get on with it.

Having said that, these are the thoughts I would have in negotiating with the agency:

1) How hard have you actually pushed the agency? Have you tried raising it with anyone else other than the junior pacing you?
2) How well do you know the client and are you able to get them to pressurise the agent for you? If the client really want you they may well tell the agent to sort it out.
3) How hard will it be for the agent find a replacement for you if you turn this down last minute? Dependent on this and also the fact that he will likely lose face with the client if you are a no-show, will this strengthen your case?

Good luck.

[TestMangler]

Personally I would take out the relevant insurances for investigations and penalties and just get on with it.

I may be worng here because I haven't researched it any further than my own policy, but can you get an investigation insurance policy INCLUDING penalties that doesn't require a contract to be reviewed before being accepted for cover ?

[cupidstunt]

I may be worng here because I haven't researched it any further than my own policy, but can you get an investigation insurance policy INCLUDING penalties that doesn't require a contract to be reviewed before being accepted for cover ?

Good question and one I am not 100% sure on. I know with PCG Plus you are covered for the investigation but not penalties and they don't ask to see the contract. I suspect you are correct though.

[Dynamic]

If they refuse to change it you refuse to accept the contract and walk away.

Unless of course you are already working for the client then you have already accepted the contract by default.

That's it really. You can't push them anymore than you have.

I started working for the client 2 weeks ago, however, I sent them an email and said I can start the work but only on the condition that we agree the terms of the contract I will sign the contract.

So that shouldn't be a problem as I confirmed it in email and they said it would be OK.

[cojak]

But your contract isn't will the client, it's with the agency! That email doesn't mean diddly-squat - you've started working so you've accepted the contract. Following your logic there is no contract so no-one has to pay you for the 2 weeks you've worked.

Oh Dear...

[Dynamic]

But your contract isn't will the client, it's with the agency! That email doesn't mean diddly-squat - you've started working so you've accepted the contract. Following your logic there is no contract so no-one has to pay you for the 2 weeks you've worked.

Oh Dear...

My contract is with the agency not the client. The client has already signed my weekly timesheets and have sent them to the agency to be paid.

When you're given a job offer; would you just accept whatever contract is given to you immediately or you'll get it checked against IR35, etc?!

You sound like you just sign whatever is given to you! don't think that's the best practice, is it?

[Dynamic]

Good question and one I am not 100% sure on. I know with PCG Plus you are covered for the investigation but not penalties and they don't ask to see the contract. I suspect you are correct though.

PCG provides Tax Defense Insurance: Tax defence | PCG

But that's only like hiring a lawyer to defend your own contract. If your contract is not IR35 friendly, they can't defend you either.

So, taking that insurance is pointless. I mean the only point I see in that is in saving the time required to correspond with HMRC but it guarantees diddly squat!

Am I right?

[cupidstunt]

PCG provides Tax Defense Insurance: Tax defence | PCG

But that's only like hiring a lawyer to defend your own contract. If your contract is not IR35 friendly, they can't defend you either.

So, taking that insurance is pointless. I mean the only point I see in that is in saving the time required to correspond with HMRC but it guarantees diddly squat!

Am I wrong?

Yes you are wrong.