Reply to: Immutable contracts - Agencies that will not allow modifications

[BolshieBastard]

Send a clear email to the operational director explaining very clearly why you will not take the contract.

More importantly add that you doubt that he will find any competent contractor with the unique skills required who will take the contract due to the personal liability that the agency and the resourcing managers insist must be in the contract. As no-one will put their family home up for risk especially if they have £1 million of professional indemnity insurance through their limited company that will more than cover the risks to the client's business.

End it politely with that you would happily work for him in the future once the contractual issues are cleared up.

I wouldn't bother sending the email to the other managers or the agent, or even talk to them.

If the agent or other managers wish to discuss the email with you say you have said everything and will not enter into further debate.

BTW there are some regulators for certain sectors of industry who will ensure that anyone working in that sector will have to have personal liability if something goes wrong if they are individually at fault, but the wording in the contract should only cover the regulated bits not the entire contract.

Rather than tell the Ops manager you (the OP) wont take this job, a better approach would be to briefly outline how and what clauses in the contract that need to be amended so as to enable you (the OP) to accept it.

IME, getting your contract reviewed by B&C and having them negotiate (for free!) on your behalf gets better results than the contractor doing it themselves.

If the agency wont budge for professionals such as B&C then the options are be walked over or walk away.

[Taita]

The despot agency now (maybe it always did) have this text on the bottom line of their Jobserve adds. . ."By applying for this job you accept the T&C's, Privacy Policy and Disclaimers which can be found on our website."

Oh, yeah . . .

Weasel words.... but to be expected from a bullying outfit like this agency who seem to think that they are buying in slaves.

Personal guarantees never should be given. Not only are they fraught with financial danger but they always will immediately negate any protection from IR35 rules. In giving one you completely undermine the contractual relationship between your ltd co and the other parties.

[TransitTrucker]

The despot agency now (maybe it always did) have this text on the bottom line of their Jobserve adds. . ."By applying for this job you accept the T&C's, Privacy Policy and Disclaimers which can be found on our website."

Oh, yeah . . .

[TransitTrucker]

Sound as a pound. Once all avenues are explored I'll escalate the issue as you suggest. Nothing to lose. I would guess that when my CV goes into this agency it will be filed in the circular bin anyway. Not that it matters since I'll never sign one of their contracts.

NB Indemnity insurance policies always state that they only cover the risk that is made known to them at the outset and that the insurer will not be liable if additional risk is accepted by the contractor. This means that if one were to sign-up to unlimited liability as per this sort of contract the insurance would not cover this.

Again, this is another problem to worry about if all agencies start to hold the contractor as well as his company liable. Contractors may be unknowingly voiding their insurance if they don't read or don't understand what the contract is really saying.

[SueEllen]

Current position:

The agency won't negotiate the contract. The agency and client's resourcing managers are as thick as thieves. The agency even has their personel permanently on site. Both think they can get rare skills off the street. This is probably why the project is 2 years late and slipping day to day.

The operational manager is fed up as he is losing a rare find (as he correctly sees it ) but the client's resourcing managers don't care a fig. Both operational and resourcing managers have been sent the email chain and a plethora of evidence to support the true history. This makes the agency lies rather obvious but this is having little effect e.g. there is an email saying the contract can be changed (which contradicts the agencies current stance).

Send a clear email to the operational director explaining very clearly why you will not take the contract.

More importantly add that you doubt that he will find any competent contractor with the unique skills required who will take the contract due to the personal liability that the agency and the resourcing managers insist must be in the contract. As no-one will put their family home up for risk especially if they have £1 million of professional indemnity insurance through their limited company that will more than cover the risks to the client's business.

End it politely with that you would happily work for him in the future once the contractual issues are cleared up.

I wouldn't bother sending the email to the other managers or the agent, or even talk to them.

If the agent or other managers wish to discuss the email with you say you have said everything and will not enter into further debate.

BTW there are some regulators for certain sectors of industry who will ensure that anyone working in that sector will have to have personal liability if something goes wrong if they are individually at fault, but the wording in the contract should only cover the regulated bits not the entire contract.

[TransitTrucker]

Walk. There is no other option if they won't budge. This is absolutely non-negotiable for me as well. I'd rather be a permie again than accept unlimited personal liability.

I agree. They have a couple of days and that is it. I'll walk rather than become personally liable for all risks however caused. Anything else would be quite daft.

As far as the "rather be a permie" message (slightly off topic). I have tended to switch between permie and contract as and when a local senior permie job comes up. I then find I get made redundant and go back to contract. In reality, I was used as a contractor for a 2 to 3 year period but it worked out in my favour. My last period was a few years back when I worked as an architect for Centrica. Looking at the stats I see that I earned slightly more as a permie than I do as a contractor when you factor everything in (pension, car, paid leave, BUPA etc). Contract rates have dropped and permie salaries have increased over the past 10 years.

[borderreiver]

Walk. There is no other option if they won't budge. This is absolutely non-negotiable for me as well. I'd rather be a permie again than accept unlimited personal liability.

[TransitTrucker]

Current position:

The agency won't negotiate the contract. The agency and client's resourcing managers are as thick as thieves. The agency even has their personel permanently on site. Both think they can get rare skills off the street. This is probably why the project is 2 years late and slipping day to day.

The operational manager is fed up as he is losing a rare find (as he correctly sees it ) but the client's resourcing managers don't care a fig. Both operational and resourcing managers have been sent the email chain and a plethora of evidence to support the true history. This makes the agency lies rather obvious but this is having little effect e.g. there is an email saying the contract can be changed (which contradicts the agencies current stance).

The personal liability issue is the killer. It is time to walk away. The client's operational and resourcing managers have been informed that the agency are intransigent and are forcing an ambiguous and contradictory contract on the worker. They have a few days to make a change otherwise I'll simply walk away.

The real issue isn't this one contract. It the proliferation of the agencies strategy.

[kingcook]

Summarising the situation: The agency have a contradictory ambiguous contract. They won't change it. I am given a take it or leave it proposition. If I walk away I lose £30K of work. When all the agencies behave in this way I will be forcd to walk from all contracts.

Back to the question: Faced with all agencies behaving like the Cray Twins what strategy can be used to minimise the effect e.g. removing all my assets from their reach when they evoke an unfair indemnity clause because some othet bu99er messed up.

Anyone?

If you're prepared to bend over and put the family home (or any other assets you have) on the line, then go for it.

As for losing £30K of work, you must have the mindset that another contract will be just around the corner so you're not really losing out on £30K.

If you're not confident that you'll get another contract in the near future, then perhaps you need to look for a permie job (no disrespect intended!).

I recently turned down a contract because the client weren't willing to describe the work i'd be doing for them in the contract. It soundedlike they wanted a temporary employee to do whatever they wanted and as they saw fit, which was an IR35 risk (IMO). I managed to land another contract a few days later.

In your case (personal liabilities) I would turn the contract down. I'd be inclined to ask the agency why they won't accept a sole trader to do the work

[Wanderer]

Summarising the situation: The agency have a contradictory ambiguous contract. They won't change it. I am given a take it or leave it proposition. If I walk away I lose £30K of work.

Firstly, I would never accept a personal guarantee in a contract. This is not negotiable. If it means I have to walk away then I walk away. What you will usually find is that the agency will give in when you tell them it's a deal breaker but you have to go right down to the wire with this.

When all the agencies behave in this way I will be forcd to walk from all contracts.

If people give in to these clauses then more and more agencies will try it on and it makes it more difficult for other contractors to resist. Stand together and refuse to work under these terms.

The important thing is to make sure the agency knows you are going to tell the client why you are refusing. Show the client your solicitor's opinion of how crap the contract is so they know the agency are a bunch of idiots and that they are being unreasonable. If you don't tell the client yourself then the agency will just lie to them.

Back to the question: Faced with all agencies behaving like the Cray Twins what strategy can be used to minimise the effect e.g. removing all my assets from their reach when they evoke an unfair indemnity clause because some othet bu99er messed up.

All agencies won't behave like this because clients and contractors alike will find out about bad agencies and refuse to work with them until they sort their act out.

As for putting your assets beyond the legal jurisdiction of the English courts, good luck with that. As SueEllen says, this may be possible if you are a foreign national who is non domiciled in the UK with no assets here but other than that forget it. Lots of people have tried this (eg, in divorce cases) and failed - the courts deal with this all the time and they aren't stupid.

The way to ring fence your assets is using a LTD liability company.... Don't sign that liability away.

[SueEllen]

Summarising the situation: The agency have a contradictory ambiguous contract. They won't change it. I am given a take it or leave it proposition. If I walk away I lose £30K of work. When all the agencies behave in this way I will be forcd to walk from all contracts.

Back to the question: Faced with all agencies behaving like the Cray Twins what strategy can be used to minimise the effect e.g. removing all my assets from their reach when they evoke an unfair indemnity clause because some othet bu99er messed up.

Anyone?

If the contract is nonsense and you have assets then walk away from this contract. If you don't especially if you are a non-EU citizen then take the contract.

You can try and give assets away but the courts have cottoned on the fact people do this for example couples getting divorced.

The biggest risk is that the agency will find an excuse not to pay you by evoking one of the clauses in the contract, or claw money back using a clause rather than going through a court.

If they are clawing money back this is where the personal guarantee comes in as if your company hasn't got the money they will use the clauses to come after you rather than go through your PI insurance.

The first incident is more common than the second.

Personally I've never come across an agency who refuses to change a single clause when they know you are using an experienced solicitor but have come across those who absolutely refuse to negotiate with you until they know you are.

[TransitTrucker]

NO NO NO!!! DO NOT EVER agree to a personal guarantee in your contract. Not under any circumstances. It's simply not worth the risk and if you cave in then you make it worse for the rest of us who then have a harder job resisting these insidious practices.

There are lots of sad stories out there from people who personally underwrote their business and lost everything. The proper, tried and tested way of doing business is with a Limited Liability Company (with appropriate insurance) to ring fence your personal assets and limit your liability if anything should go wrong.

If the agency won't budge then tell them you are going to decline the contract and explain to the client why you can't take it on. The client will understand that the agency are being unreasonable and will probably stop dealing with the agency too.

And ask the agency if the directors and shareholders will provide a reciprocal agreement to underwrite the line of credit your company is extending to them, so if the agency goes bust then the directors and shareholders will personally underwrite an unlimited liability for debts owed to your company? Your request will be met with hysterical laughter - of course they won't and that's why you shouldn't either.

Summarising the situation: The agency have a contradictory ambiguous contract. They won't change it. I am given a take it or leave it proposition. If I walk away I lose £30K of work. When all the agencies behave in this way I will be forcd to walk from all contracts.

Back to the question: Faced with all agencies behaving like the Cray Twins what strategy can be used to minimise the effect e.g. removing all my assets from their reach when they evoke an unfair indemnity clause because some othet bu99er messed up.

Anyone?

[BolshieBastard]

I've found actually using a real solicitor helps get agencies who write their own rubbish contracts change them.

If you ask them to change it yourself they come out with the "No one else asked for this change" bulltulip but when they realised they are actually dealing with a qualified and experienced solicitor they back track.

In most cases the agent will phone your solicitor to confirm you aren't taking the piss and actually using one.

Or use someone like Bauer and Cottrell and agencies tend to be more accommodating to changes. However, as with all organisations who issue contracts, they'll only bend so far and then say 'Nope to that one!'

[Taita]

As I mentioned before by paying a solicitor and getting them to redraft clauses the agency normally bends over.

It also helps to inform the client what is happening especially if there are any particular clauses related to their work which you have clarify with them.

I would inform the client first then tell the agency.

Apologies for coming in on the tail end as usual but is this contract 'whoha' not why so many here advise passing the contract by one of the specialists offering contract review services?

[SueEllen]

As I mentioned before by paying a solicitor and getting them to redraft clauses the agency normally bends over.

It also helps to inform the client what is happening especially if there are any particular clauses related to their work which you have clarify with them.

I would inform the client first then tell the agency.