Contract Restriction!

[Bones]

So, first question: do you understand enough about IR35r to challenge any assumptions in the contract on how it applies? Opted in or out and the Agency Regs have absolutely nothing to do with it, be sure they haven't given you some bastardised version that requires you pay all your income as PAYE for some such nonsense.

It is a standard and by now rather tired trick: you opting in creates more work for them and greater business risks so they use the IR35 caught only option for opted in contracts to persuade you to opt out.

No I dont know enough about IR35 to challenge all of the exact wording of this contract. He said that the wording of the contracts are given to them by REC. I believe this contract is fully written for work within IR35 and does require me to pay income as PAYE

Its 17 pages long but states "The Intermediary shall be responsible for the deduction of any PAYE Income Tax and National Insurance Contributions and any other taxes and deductions payable in respect of the Agency Worker "

[Bones]

You are getting all these contracts checked by QDOS and the like aren't you?

That would be my preference and I have just got PI & PL through them. However it was only the very short time scales that have stopped me so far. I start in the morning!

[northernladyuk]

OK wise ones, how about this? Sign and return the original contract. 5 minutes later withdraw the opt out. Does the rest of the contract still stand.

Of course this is a bloody daft way to do business.

[Bones]

OK wise ones, how about this? Sign and return the original contract. 5 minutes later withdraw the opt out. Does the rest of the contract still stand.

Of course this is a bloody daft way to do business.

This is an unholy mess!

I was struggling to decide if the agent was green/incompetent or trying to screw me!! He has sent me an apology plus a word version of the first contract (originally a pdf) because I said I would amend the original and return.
My preference would be to amend the original (copy to agent for info) and then have it looked at by QDOS before signing. But that will take 5 working days at least.

[malvolio]

That would be my preference and I have just got PI & PL through them. However it was only the very short time scales that have stopped me so far. I start in the morning!

I suggest you don't. For a start you are not an Agency Worker, you are an independent contractor (I assume, else why are we having this conversation!). An Agency Worker is effectively an employee of the agency so you've got the wrong contract. How you account for your personal taxation is none of their concern anyway.

This is getting silly. Contact the client, tell them you don't have a valid contract and cannot start work until you do; feel free to blame the agency since it's them that doesn't understand their own business. Then call Bauer and Cotterill (or QDOS at a pinch) and ask them to do a fast track review of the contract and deal with the agency on your behalf so you get something close to the right one. It might cost a couple of hundred, but that's nothing compared to the value of a legally sound contract. You wills tart a day or three late, but at least you start with a clear conscience.

[Bones]

I suggest you don't. For a start you are not an Agency Worker, you are an independent contractor (I assume, else why are we having this conversation!). An Agency Worker is effectively an employee of the agency so you've got the wrong contract. How you account for your personal taxation is none of their concern anyway.

I wouldnt do anything with second contract they sent as it is wholly inappropriate for a ltd contractor.

This is getting silly. Contact the client, tell them you don't have a valid contract and cannot start work until you do; feel free to blame the agency since it's them that doesn't understand their own business. Then call Bauer and Cotterill (or QDOS at a pinch) and ask them to do a fast track review of the contract and deal with the agency on your behalf so you get something close to the right one. It might cost a couple of hundred, but that's nothing compared to the value of a legally sound contract. You will start a day or three late, but at least you start with a clear conscience.

The first contract only needed the ref to 'opting out' removing and 'six' months changing to 'two'!! so I was trying not to expand this mess into an expensive fiasco. It could end up only being a short contract anyway. I am beginning to wish I had just signed it!!

[SueEllen]

This is a common agency trick because you didn't tell them repeatedly that my lawyer/legal advisor is reviewing the contract.

For future reference always get the initial contract amended rather than ask the agency for another one if the changes are small.

[Wanderer]

I am now a little concerned as the agent has already 'stalled' from Friday by saying my email went to his spam box (non of my other emails have). It depends if they are being arsey and deceptive, he said there was no problem altering the contract so they have agreed verbally...

This is one of the Stupid Agency Tricks that they try to pull. Every thing you agreed verbally will be denied after you have started work and you will be shafted as far as the agency is concerned. They are doing this 100% deliberately.

I am now left wondering if I should start tomorrow without the contract signed!

NO! Don't do that or they will shaft you. You have been warned.

At 16:55 the agent has sent me a completely different contract headed "TERMS OF ENGAGEMENT WITH A LIMITED COMPANY CONTRACTOR WHO HAS NOT OPTED OUT OF THE CONDUCT REGULATIONS (WITHIN IR35)"

Which now defines the LTD company as providing "the Intermediary Services" and references me as the agency worker.

I have spoken to the agent since and he says that its the only other std contract they have. Although he didnt say why it has taken all day to put a name and address on a STD contract

Stalling tactics once again. The more they stall, the more anxious you become to sign whatever they put in front of you.

Take their original contract which states "outside IR35" and edit it. Don't delete, but rather strike through all references to the opt out with a single line. Then add a statement at the end to say that "For the avoidance of all doubt, the consultancy company does NOT intend to "opt out" of the provisions of The Conduct of Employment Agencies and Employment Businesses Regulations 2003 and any such opt out previously agreed is hereby revoked".


They really are playing silly buggers though, they know full well that the Agency Conduct Regulations have NOTHING to do with your IR35 status. Time and time again we see agencies abuse the opt out with impunity (including when the worker is using an umbrella - why would they ever want to opt out then?).

The worst thing is that the PCG stand by and do nothing to stop it. This has been raised on the PCG forums but the people in charge think all freelancers would want to opt out anyway, they are in denial that any problem such as the one evident here exists.

[northernladuk]

That would be my preference and I have just got PI & PL through them. However it was only the very short time scales that have stopped me so far. I start in the morning!

That is no excuse. The checks are to protect you, not just for a bit of fun. Get it wrong and it will cost you a lot more than delaying the gig. QDOS can turn it round in a day so isn't going to kill you to get it right.

[northernladuk]

OK wise ones, how about this? Sign and return the original contract. 5 minutes later withdraw the opt out. Does the rest of the contract still stand.

Of course this is a bloody daft way to do business.

Isn't your whole business plan based on something like this?