Reply to: Being blackmailed to sign new, backdated contract

[LondonManc]

The other thing to consider if you decide to take legal action is that your contract may be terminated.

Have you spoken to the end client, they may not be aware of the actions of the service provider.

Correct and a good point.

If you have a good working relationship with end client, talk to them about the situation. While they may shrug it off, explain that the situation could lead to you going offsite as you do not wish to expose yourself to more risk than is necessary.

[eazy]

Termination

The other thing to consider if you decide to take legal action is that your contract may be terminated.

Have you spoken to the end client, they may not be aware of the actions of the service provider.

[SimonMac]

I asked the provider throughout July for a new contract - there response was first to lie and say one was in the post, then later said do not worry - the contract has rolled over.

As they only indicated on 5th August that they were making changes to the contract, I don't see how it can be legal to back date the changes.

Yes, true IR35 is a concern, but this is not my only client, and there are other factors that I believe help - but that's not my main concern right now.

How was "the contract has rolled over" communicated, if in an email or something tangible than that is fine, you carry on until someone terminates the contract, either by mutually agreeing and end or superseding it with a new one (which it looks like has tried to be done here).

If the new contract was presented on the 5th, this would only be valid if the old contract was terminated correctly as per the terms in the original contract. (How much notice was required in the old contract)

If the contract on the 5th was presented, but back dated to July that is irrelevant as you had a valid contract (even if only assumed) for the period so you didn't have a written contract.

If the notice period on the old contract has been completed from the 5th to today, leave the client (taking as much evidence as you can) and start chasing payment (see dunning).

IANAL but it looks like you are covered, its just gonna be a ballache for you to get your money, on the plus side you have a bloody good IR35 defense out of it,

[Support Monkey]

The back dated contract that has the "pay when paid" clause? We wouldn't recommend that.

Our advice to the OP would be stick to your guns and get paid first, then make a decision as to the new contract.

Same here, that clause is a major issue for you, if the agency are on a 90 day payment term from the client and the service provider is on 90 days from the agency when do you think your going to get your money, you could be looking at 6 months before you get paid, I had this in a contract before and we had to get it amended because the contracted would have ended 2 months before getting paid for the first weeks work

[LondonManc]

Part of the problem here is your own apathy.

If I don't have any contracts or agreements in writing I down tools. I don't let contracts roll over.

If I had an email confirming an extension for six months, with all terms remaining the same, that's legally binding as soon as they let me on site on the first day of the extension. I've accepted it by being there and they've accepted it by allowing me on site.

[SueEllen]

I asked the provider throughout July for a new contract - there response was first to lie and say one was in the post, then later said do not worry - the contract has rolled over.

Part of the problem here is your own apathy.

If I don't have any contracts or agreements in writing I down tools. I don't let contracts roll over.

As they only indicated on 5th August that they were making changes to the contract, I don't see how it can be legal to back date the changes.

They will try it but it's up to you to get legal and state it is not acceptable.

Safer Collections has already appeared on this thread to help you so I suggest you contact them and ask them for advice on:
1. Getting your invoices paid
2. When you should call them in to chase up invoices

Moaning here about what the agency has and hasn't done isn't going to help you.

[LondonManc]

I asked the provider throughout July for a new contract - there response was first to lie and say one was in the post, then later said do not worry - the contract has rolled over.

As they only indicated on 5th August that they were making changes to the contract, I don't see how it can be legal to back date the changes.

Yes, true IR35 is a concern, but this is not my only client, and there are other factors that I believe help - but that's not my main concern right now.

Better check your new Ts and Cs - there may be a clause about not working for more than one client, which would wedge you firmly between the cheeks of IR35.

[eek]

I asked the provider throughout July for a new contract - there response was first to lie and say one was in the post, then later said do not worry - the contract has rolled over.

As they only indicated on 5th August that they were making changes to the contract, I don't see how it can be legal to back date the changes.

Yes, true IR35 is a concern, but this is not my only client, and there are other factors that I believe help - but that's not my main concern right now.

IR35 is a per contract tax. It's perfectly possible to have 3 contracts running at the same time, one in IR35, two outside. HMRC's old disregarded business rules have gone and were never that accurate anyway...

[uk2016]

As Crossroads alludes to, the devil is in the details here and I don't think we've enough so far.

When you say it was rolled over... Did you get a renewal through stating the dates of the renewal and a statement saying existing T&C's are the same. If not then you've made a rod for your own back. You run a company and you have to act like one. You cover yourself with signed paperwork detailing exactly what the score is. Don't accept a mail saying it's rolled over. Nothing good will come from it. You should also be getting a new schedule of work detailing the tasks you will be doing in the period to be fair.

If you'd gotten that letter explicitly stating the terms and dates they wouldn't have a leg to stand on. They are quite within their rights to serve you notice and present you with a new contract, take it or leave it. Banks do it regularly. If they had been smart they could cite the old contract has finished and terminate it immediately and present you the new one with the new 'client'. Refusing to back pay until you sign is right out of order yes but don't think there is much you can do about it now. I'm guessing after 4 years you are just going to plod on.

It's slightly off topic but 4 years at a client isn't really an IR35 issue per se but often leads to part and parcel issues and a lax attitude to your engagement. 'rolling contracts' can be bad for IR35. The two together start painting a pretty poor picture of your situation and I am sure are tip of the iceberg. If you are going to continue I'd suggest you have a long hard look at your IR35 status going forward.

I asked the provider throughout July for a new contract - there response was first to lie and say one was in the post, then later said do not worry - the contract has rolled over.

As they only indicated on 5th August that they were making changes to the contract, I don't see how it can be legal to back date the changes.

Yes, true IR35 is a concern, but this is not my only client, and there are other factors that I believe help - but that's not my main concern right now.

[TykeMerc]

This one stinks of go legal, do not pass go, do not shilly, shally about.

Your old contract is in force as are the terms and conditions, write them a serious letter (via special post so they can't claim it didn't arrive), include all invoices to the date of the letter and be completely prepared to take it to court, in your shoes I'd be telling them to poke it if they are trying to ram backdated terms and conditions on you.

It's possible that they will buckle, but frankly they're taking the mickey on a monumental scale so you need to get proper considered advice on how to proceed, since you're looking at disputes of multiple months of invoices then Small Claims court may be out of consideration.

[Safe Collections]

In any case your best bet to get paid for June/July is to sign the backdated contract

The back dated contract that has the "pay when paid" clause? We wouldn't recommend that.

Our advice to the OP would be stick to your guns and get paid first, then make a decision as to the new contract.

[LondonManc]

I'd say that you want settling up for June, July and August under the terms of the contract in place at the time - those are the terms and conditions under which you had invoiced them. Ask your accountant for a nice email to make it sound all legal, talking about tax points and so on, but advising that you're happy to accept a week's notice and start a new contract with them under the revised terms from 1st September, subject to review (QDOS, etc.)

It's all well and good people advising you to run away, but if you've not got much of a warchest and nowhere to particularly run to, you're screwed.

[sal]

No... You sign the contract, wait till the money arrives in the account, resign and take a holiday....

Remember they have already shown themselves to be untrustworthy and unreliable... With clause 2 they have carte blanc to pull more tricks. Best to do your best to get the money in and look for something else

+1

Chances are this is a technicality dictated by inserting an intermediary and new upstream contracts, which will explain the delay in providing your contract. Not necessarily something devious.

Looks like the end client wants you, which is good. The problem is with 2) where you are taking a significantly increased financial risk. 1) - as a contractor there is no such thing as overtime, if you refer to work in "out of office" or "unsociable" hours, i never expect it to be more than 1:1 my hourly rate, anything above it is a welcome bonus but not having it is nothing to fret about. 3) The chances of you working for the same company through a different agency on a new contract in an year are slim anyway no matter how large it is. Not worth risking 2 months of invoicing over.

In any case your best bet to get paid for June/July is to sign the backdated contract, wait for the back payments and terminate the contract in accordance with the termination clauses. Meanwhile CV refresh and start looking for new role immediately.

[malvolio]

Dear all,

I had a contract with my management services provider, and my own limited company, until end of June this year.
I continued working in July, with the approval of the provider who stated that the contract had "rolled over" - meaning all terms and conditions are carried over.
On the 5th of August the provider then said they were issuing a new contract, with different terms and conditions, and they had back dated this to the 1st July.

They are refusing to pay my June and July invoices unless I sign this new contract.

This sounds like straight forward blackmail to me.

Do you know what is the quickest, and least expensive, route to follow to claim my payments from them?

BTW: they have taken exactly the same actions with a 2nd contractor, via his own ltd company.

Many thanks,
Kind Regards,
an unhappy contractor

Your original contract is still in force, and you have the right to be paid according to its terms. Sue them if that doesn't happen. They have no legal basis on which to withhold payment provided you have adhered to the provisions of that original contract wrt timesheets and so on.

You can't really backdate a contract either but of course you can negotiate any variations from the original to everyone's satisfaction, including when they should take effect.

If you're an IPSE member, give the legal helpline a call

[eek]

It's retrospectively dated - if you sign the contract you're agreeing that they don't need to pay you (inc your invoices from june/july) until they've been paid - god knows how long that will take (or if they will be honest about it) - so you might be waiting a while until the money arrives in the account...

True but you are implying they are being even sneakier than I am. Given that they are claiming they won't pay you until you sign the contract its an implied clause of signing the contract is that June and July would be paid for fairly quickly....

As NLUK states its all going to boil down to what was written down when the OP walked through the door on the 1st July...