Contract Wording

[northernladuk]

Perhaps one of the most interesting and insightful posts I have read on this board (Sorry NLUK).
.

[NomDePlum]

As someone alluded to above, these are quite wide and general clauses. This feedback will prompt me to review these clauses to make them more relevant if appropriate.

At this point I will take all of your advice, and now seek qualified legal opinion.

That sounds like a 'Yes' to also being related to off-payroll liabilities Andy. Am I mis-interpreting that? Also there was a previous comment that alluded to these clauses being pretty ineffective/unenforceable. What's your take o that?

[malvolio]

That sounds like a 'Yes' to also being related to off-payroll liabilities Andy. Am I mis-interpreting that? Also there was a previous comment that alluded to these clauses being pretty ineffective/unenforceable. What's your take o that?

All clauses are enforceable if both sides have agreed to them... It's whether or not they are risky or onerous to one side, in which case they should be negotiated down before signing the contract.

And, as has also been alluded to (if indirectly), the agencies and clients need to protect themselves from the cowboys on our side as well; especially those who prefer not to engage on an out-and-out B2B basis and think they want (or need) things like gentle notice periods and guaranteed work.

[jamesbrown]

All clauses are enforceable if both sides have agreed to them... It's whether or not they are risky or onerous to one side, in which case they should be negotiated down before signing the contract.

And, as has also been alluded to (if indirectly), the agencies and clients need to protect themselves from the cowboys on our side as well; especially those who prefer not to engage on an out-and-out B2B basis and think they want (or need) things like gentle notice periods and guaranteed work.

In terms of whether a contract clause is enforceable, it really depends. The courts often "look through" sweeping clauses to establish what the parties really intended. I can look out some case law on this if you want. It isn't enough that both parties sign a contract. To take a simple example, you cannot enforce something that contravenes statute law. To take a more complex example, an indemnity clause or a handcuff clause has a greater risk of being "looked through" if it is written to catch all circumstances or a concrete loss is difficult to identify. That doesn't mean such clauses are completely ineffective, only that they may be re-interpreted by the courts with a much narrower (commercial) scope than the clause originally envisaged. Again, though, I am not a lawyer, just someone who takes a passing interest in the law.

[NomDePlum]

All clauses are enforceable if both sides have agreed to them... It's whether or not they are risky or onerous to one side, in which case they should be negotiated down before signing the contract.

And, as has also been alluded to (if indirectly), the agencies and clients need to protect themselves from the cowboys on our side as well; especially those who prefer not to engage on an out-and-out B2B basis and think they want (or need) things like gentle notice periods and guaranteed work.

Which strongly implies that the OP should not accept these clauses and should ask for their removal surely given Andy's explanation as they seem to be pretty much catch-all.

In the case I asked about specifically (off-payroll) your answer implies that these clauses move the liability from end-client to the Ltd company particularly if there is a similar clause in the higher contract between the end-client and the Agent. Or am I reading this wrong?

If so then pretty scary and not really something that can be explained away by just citing 'Cowboys' as the end-client and agency now have at least as much responsibility in these regards now as anyone.

[jamesbrown]

Which strongly implies that the OP should not accept these clauses

That much is given. To a large extent, the question over what is enforceable is a sideshow. You don't really want to get into a position where that needs to be tested. If they agreed only to a re-wording would you then accept it? I probably wouldn't TBH, as a matter of principle. But remember, the current situation with IR35 is that YourCo is ultimately liable and it can take necessary precautions to indemnify itself (if it really wants to). If anything, the new PS rules are more favourable than the current rules if a PSB has deemed a contract outside. It's going to be inherently difficult to reverse that at tribunal, unless the PSB has been negligent (in which case they are liable anyway).

[WordIsBond]

I always go direct, and currently have more work than I can handle. But I'd just like to say that if I'm ever looking to go through an agent or place one of my employees through an agent, this thread, while quite amusing, also makes me think Andy Hallett is the first person I'd contact to see if he's got anything on.

[northernladuk]

Yeah but he's got work managing an group of agencies. He'd put you on to the account managers and drones and you are back to square one. But I know what you mean.

[Andy Hallett]

Contract Wording

Yeah he's got work managing an agency. He'd put you on to the account managers and drones and you are back to square one.

If you had made that comment a few years ago I might have [secretly] agreed with you.

We've been on a journey the last few years to put our customers at the heart of everything we do. We have introduced an NPS system and things like promotions and appraisals take these scores and comments into account, not just how much cash someone has brought it.

We also have been very careful about the culture we create. This extends to the people we hire, the values we hold and the opportunities we give to our people. This Employer Value Proposition means that we look past the bottom line.

Companies that simply focus on profit will be average. Companies that focus on their customers and their staff are generally the most successful, the profits logically follow. With 5000 U.K. recruitment firms starting each year it is a congested market.

So whilst I agree not everything we do will be perfect, we are closer that when I first started posting on here 4-5 years ago and will continue on that journey. As always I always value feedback on how we can be a better company.

[SueEllen]

As always I always value feedback on how we can be a better company.

When someone posts their contract wording on here and you recognise it ignore them, as they will be told early in the thread to get it reviewed by a legal advisor.

Though this thread was amusing...