Reply to: Right of Substitution not mirrored!

[tim123]

I am doing something about it. We are negotiating...

To be honest beating up on agents strikes me as pointless. All that would happen is that agencies would remove their dodgy RoS clauses. Where's the benefit to small suppliers?

The real issue is why are clients (or primarily client HR departments) getting away with such intransigence.

Because they are the ones paying the bill. If you don't like the terms on which they are prepared to offer the work, and those terms are not creating a shortage of applicants, they will offer the work to someone else.

IMHO the problem here is the agents. If the client has good business reasons for not offering a workable RoS, then however hard you push he wont offer a RoS (and be honest, if you were the manager of a development department, would you). If this is the case, the agents should be up front and say so. Then everybody would stop thinking it was as simple as a contractual clause (because it isn't).

The PCG should campaign for IR35 to lead to full employment rights. Watch those RoS clauses appear overnight!!!

No you wouldn't. You be far more likely to see companies refuse to employ Ltd Company freelances and insist that everybody was Agency-PAYE. Yours is not the only solution to the problem.

tim

[malvolio]

Because clients don't always know (or want to specify) what they want in detail......

So why are they invariably sold contracts in units of time? Ah, I know, it's to help budget planning. But how do you set a budget if you don't know what you want?

So why not simply buy services until no longer required or until a better supplier turns up - it's how I buy my newspapers and my LPG after all. Sadly, that's not what the agencies are selling, is it? Consider how much simpler your negotiations would be if everyone had agreed up front there was no element of service, it's for the supply of services.

The problem is that 90% of contractors still think like permies in terms of continuity of work and time-based deliverables. No wonder we can't re-educate the clients.

I suppose I'm not to supposed to see that as provocative either.....

You're haven't really worked out how Malvolio works yet, have you...

[babason]

Ah, the old nuclear option. It won't work, taxation and employment are judged on different bases: being put inside IR35 does not make you an employee. Plus it would do serious damage to the contractor market, since agencies would simply put you on PAYE terms with themselves.

Ahh...fair enough.

And can't you spot the inconsistency? You're negotiating business terms with someone who is quite happy to give you a contract that says anything at all since he doesn't care that it doesn't align to the upper one.

We haven't concluded negotiations yet. I raised it here as I wanted to check I wasn't being an awkward sod about it. As part of the negotiotion I will be insisting on a mirror clause. I agree, without it my contract would be worthless.

And the intransigence is because the agencies run the market, not us nor the clients, and they want to sell themselves as providers of staff, not as brokers of valuable skills. Why do you think you get three month contracts as opposed to "build me a website to do this"?

Because clients don't always know (or want to specify) what they want in detail.

Wake up and smell the coffee, please.

I suppose I'm not to supposed to see that as provocative either.....

[malvolio]

I am doing something about it. We are negotiating...

To be honest beating up on agents strikes me as pointless. All that would happen is that agencies would remove their dodgy RoS clauses. Where's the benefit to small suppliers?

The real issue is why are clients (or primarily client HR departments) getting away with such intransigence.

The PCG should campaign for IR35 to lead to full employment rights. Watch those RoS clauses appear overnight!!!

Ah, the old nuclear option. It won't work, taxation and employment are judged on different bases: being put inside IR35 does not make you an employee. Plus it would do serious damage to the contractor market, since agencies would simply put you on PAYE terms with themselves.

And can't you spot the inconsistency? You're negotiating business terms with someone who is quite happy to give you a contract that says anything at all since he doesn't care that it doesn't align to the upper one. ope it goes well for you, but I bet if it ever goes to court you'll be the next Dragonfly.

And the intransigence is because the agencies run the market, not us nor the clients, and they want to sell themselves as providers of staff, not as brokers of valuable skills. Why do you think you get three month contracts as opposed to "build me a website to do this"? Wake up and smell the coffee, please.

[babason]

The PCG question was for a good reason - phone the legal helpline and explain what's going on and see if they have a view. If they agree with my view, than do something about it. We need someone to challenge this whole area of mis-matched contracts and you are looking at a perfect example.

I am doing something about it. We are negotiating...

To be honest beating up on agents strikes me as pointless. All that would happen is that agencies would remove their dodgy RoS clauses. Where's the benefit to small suppliers?

The real issue is why are clients (or primarily client HR departments) getting away with such intransigence.

The PCG should campaign for IR35 to lead to full employment rights. Watch those RoS clauses appear overnight!!!

[malvolio]

...snip...

The impression I have is not one of a malicious agent trying to pull the fast one over me at any cost. The impression is more they take care of their business and they expect you to take care of yours. They do what is necessary to get the job done. If an issue that affects their income is brought to their attention they address it reasonably. However they don't worry about your problems for you.

Nope, that's bollocks. They have given you a contract they can't honour. They are therefore acting, if not illegally, certainly not in good faith. There's a fighting chance your whole contract isn't worth the paper it's printed on.

The PCG question was for a good reason - phone the legal helpline and explain what's going on and see if they have a view. If they agree with my view, than do something about it. We need someone to challenge this whole area of mis-matched contracts and you are looking at a perfect example.

[babason]

That's too fettered to be of any use. It's the clietn's decision to refuse, and is nothing to do with the aency anyway.

Funnily enough I was quite positive about this. I am quite impressed that in the space of a few weeks they've managed to get the client's HR department to agree to anything!

A PWD cannot be defined as a number of hours. A PWD is just that - you do work for them in any 24 hour period, you charge a fixed sum (or any lesser amount at your discretion). Defining a PWD is D&C, requiring you to work an 8 hour day. Don't sign that amendment and challenge the agency on why they think it necessary (hint: they won't know)

Will do...

If they won't give you a guarantee that the contracts are accurately mirriored, I should perhaps get legal advice. It's quite likely the whole contract between you and the agency is a sham, written purely to get you into work and not to reflect reality.

Yep will do that too...

Might be an idea to talk to the client as well - "Excuse me but my agency has set me up with an illegal contract, I may be about to leave you". That would get their attention...

It would. I'm keeping my powder dry...

And if you ain't in hte PCG already, damn well join. You have something worth pursuing.

I am. However, I don't really expect this to get that nasty. I think they genuinely thought what they previously had in place was good enough. Especially when you consider none of their other suppliers raised the issue.

The impression I have is not one of a malicious agent trying to pull the fast one over me at any cost. The impression is more they take care of their business and they expect you to take care of yours. They do what is necessary to get the job done. If an issue that affects their income is brought to their attention they address it reasonably. However they don't worry about your problems for you.

[malvolio]

Progress report:

I have been informed that the agency now has an agreement with the client to allow substitution. However I would need to get approval in advance in writing 'which would not be witheld in the agent's reasonable view'.

Am I being picky as that doesn't seem to me to be quite the same as 'which would not be witheld unreasonably'...

Interestingly, they are using the opportunity to make a few other changes. One I noticed is they are defining the professional working day as 8+ hours. (I've been doing 7.5 hour days for the past 7 years) I've not come across that definition before, is that normal?


Lastly, I enquired whether they would accept a clause which guaranteed the client's contract was a mirror of mine. They said 'no' which has made me suspicious. I'm still a little concerned about what references are made to MOO and D&C in the upper contract. Am I being unreasonable here?

That's too fettered to be of any use. It's the clietn's decision to refuse, and is nothing to do with the aency anyway.

A PWD cannot be defined as a number of hours. A PWD is just that - you do work for them in any 24 hour period, you charge a fixed sum (or any lesser amount at your discretion). Defining a PWD is D&C, requiring you to work an 8 hour day. Don't sign that amendment and challenge the agency on why they think it necessary (hint: they won't know)

If they won't give you a guarantee that the contracts are accurately mirriored, I should perhaps get legal advice. It's quite likely the whole contract between you and the agency is a sham, written purely to get you into work and not to reflect reality.

Might be an idea to talk to the client as well - "Excuse me but my agency has set me up with an illegal contract, I may be about to leave you". That would get their attention...

And if you ain't in hte PCG already, damn well join. You have something worth pursuing.

[malvolio]

In a recent IR35 case that the PCG was fighting, HMRC won because the contract between client and EB didn't match that between EB and contractor. Contractor paid up rather than prolong the fight, but IIRC, PCG were prepared to fight on, so that might be an option.

Where's Mal to confirm it?

I'm here, and the guy had all the usual PCG resources to throw at them but didn't want another three years in court. He was down several tens of thousands as well. But they can't fight the case iof the victim (and I use that word very precisely) can't face the hassle. And that, BTW, makes you realise just how tough Geoff and Diana Jones had to be.

[babason]

Progress report:

I have been informed that the agency now has an agreement with the client to allow substitution. However I would need to get approval in advance in writing 'which would not be witheld in the agent's reasonable view'.

Am I being picky as that doesn't seem to me to be quite the same as 'which would not be witheld unreasonably'...

Interestingly, they are using the opportunity to make a few other changes. One I noticed is they are defining the professional working day as 8+ hours. (I've been doing 7.5 hour days for the past 7 years) I've not come across that definition before, is that normal?


Lastly, I enquired whether they would accept a clause which guaranteed the client's contract was a mirror of mine. They said 'no' which has made me suspicious. I'm still a little concerned about what references are made to MOO and D&C in the upper contract. Am I being unreasonable here?

[TheFaQQer]

The theory is that the PCG will fund cases like this in an attempt to establish some new case law that they believe is beneficial to all.

So, whether an individual gets the PCG to fund their appeal depends upon the benefit to others, not on the benefit to the individual.

tim

Yes - the idea of suing an EB for breach of contract would have set a good precedent, which was worth arguing. IIRC, the guy said that he'd had enough of fighting it though.

[tim123]

Contractor probably wasn't insured then. Although I think insurance only takes you upto the commissioners anyway. So if you lose there you're basically stuffed unless you rely on charity to bail you out. Not a good strategy........

The theory is that the PCG will fund cases like this in an attempt to establish some new case law that they believe is beneficial to all.

So, whether an individual gets the PCG to fund their appeal depends upon the benefit to others, not on the benefit to the individual.

tim

[Fred Bloggs]

Fair enough, I'm sure my QDOS cover only goes upto comissioners, not appeal. Sounds like the case has moved on. The commissioners need to get consistent though. It seems if you get Hellier (I think?) you're basically stuffed before you start.

[TheFaQQer]

Contractor probably wasn't insured then. Although I think insurance only takes you upto the commissioners anyway. So if you lose there you're basically stuffed unless you rely on charity to bail you out. Not a good strategy........

No - they had the insurance to fight the IR35 part. The case hinged on the fact that the agent had lied to the contractor when they said that they could have a RoS. Insurance fights the whole thing, I think.

PCG offered to help fight the agency for breach of contract.

IIRC.

[Fred Bloggs]

Contractor probably wasn't insured then. Although I think insurance only takes you upto the commissioners anyway. So if you lose there you're basically stuffed unless you rely on charity to bail you out. Not a good strategy........