Contract Restriction!

[malvolio]

Thanks for that, I have just looked again and the contract is headed with "Agreement with self-employed consultancy who has opted out of the conduct regulations (outside IR35)"

I have just spoke to the agent and he asked me why I didnt want to opt out and told me it was a pointer for IR35. I disagreed with everything he said so he agreed to change it. I also pointed out the six month restriction which he said was an agreement with the client! I told him it contravened the regulations, he said he would change that as well! I will have to see what he sends through next, I start tomorrow!

Feel free. If you have started work, you have de facto accepted whatever it contains...

[Bones]

Feel free. If you have started work, you have de facto accepted whatever it contains...

So you are saying that if they stall and I start work I have to accept the wording of any contract they subsequently offer?

With regards to opt out I thought you had to opt out before introduction. The only grey area being the definition of 'introduction' which I thought was either interview or starting the job so the contract would be void in terms of opt out anyway?

[malvolio]

So you are saying that if they stall and I start work I have to accept the wording of any contract they subsequently offer?

No. I'm saying that by starting work you have implicitly accepted the last contract on the table prior to you starting. It can still be amended, but you are no longer working from a position of strength.

With regards to opt out I thought you had to opt out before introduction. The only grey area being the definition of 'introduction' which I thought was either interview or starting the job so the contract would be void in terms of opt out anyway?

Yes, that's how we see it. Sadly the agencies prefer to see "introduction" as meaning "being introduced into the work force", i.e. as if you were whichever Office Angels temp happens to turn up on the Monday. The two sides will never agree, and until someone goes to court to challenge something related to being opted in or out (for example, believing they were opted in but the agency insisting on their original 6 month handcuff clause standing), we will never get clarity.

[Bones]

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

The problem with relying on a technicality to maintained your rights is the agent wont let you exercise any of them without going down the legal route as he will always see himself as right.
So in practice you have lost your rights e.g to be payed if the client hasnt signed the time sheet.

[malvolio]

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

I wouldn't; depends how hard you want to play it ("Sorry, Mr Client, the agency pissing around is preventing me starting work as planned..." often works quite well). You could always send them a suitably amended version of the contract you currently have. It is supposed to be a negotiation, after all...

The problem with relying on a technicality to maintained your rights is the agent wont let you exercise any of them without going down the legal route as he will always see himself as right.
So in practice you have lost your rights e.g to be payed if the client hasnt signed the time sheet.

No (again). Contract terms are enforceable and requiring proof of work done prior to payment is not unreasonable (do you pay for petrol before or after you've filled the tank?). You need to be clear about the bits that are related to the Regs (primarily handcuff and non-payment by the client to the agency) and those that are simply acceptable good practice.

[kevpuk]

<snip>You need to be clear about the bits that are related to the Regs (primarily handcuff and non-payment by the client to the agency) and those that are simply acceptable good practice.<snip>

This ^^ in many ways is the crux.
If you are not really not in any doubt about the Client paying, and are most unlikely to return to Client (either Direct or via a different Agent) within approx. 6 months, then in/out is of much less relevance to my mind.

[Bones]

I wouldn't; depends how hard you want to play it ("Sorry, Mr Client, the agency pissing around is preventing me starting work as planned..." often works quite well). You could always send them a suitably amended version of the contract you currently have. It is supposed to be a negotiation, after all...

I will consider doing that as a last option, I have spoken again with the agent and the lawyer has the contract! (to be sent shortly)

No (again). Contract terms are enforceable and requiring proof of work done prior to payment is not unreasonable (do you pay for petrol before or after you've filled the tank?). You need to be clear about the bits that are related to the Regs (primarily handcuff and non-payment by the client to the agency) and those that are simply acceptable good practice.

My point was simply that if you rely on the contract being invalid (due to the introduction rule) the agent will have a different view of what the 'contract terms' actually are. He will be working with the signed contract terms, you are working with the conduct regulation terms (as you believe the signed contract is invalid)
I only used the payment example as it was the only one I could think was in the conduct regs but unlikely to be honored if you have opted out.

[Bones]

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!

[malvolio]

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!

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.

[northernladuk]

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