Reply to: Agency refusing to alter clause

[Tasslehoff]

Related question: if I wanted to get a review done after starting the contract, how easy/difficult would it be to get any amends done at the point of extension?

It is possible, as my re-negotiation was at the point of extension. Guess I was just lucky, good grace with the client helped so I must be doing something right

[TheFaQQer]

Related question: if I wanted to get a review done after starting the contract, how easy/difficult would it be to get any amends done at the point of extension?

As with any contract, it's a case of negotiation. At renewal time, you have the opportunity to make changes and then to either accept or reject the contract, in the same way that you do before starting a contract.

I have modified some clauses in the past on renewal because of a minor shift in attitude generally with respect to notice periods, but generally you should sort out the meaningful stuff before you accept the contract.

[SueEllen]

Related question: if I wanted to get a review done after starting the contract, how easy/difficult would it be to get any amends done at the point of extension?

Virtually impossible.

Once you are on site the agency has no reason to change the contract especially if one of the clauses there is an issue with is from the upper contract with the client.

[PerfectStorm]

Related question: if I wanted to get a review done after starting the contract, how easy/difficult would it be to get any amends done at the point of extension?

[TheFaQQer]

If you had used Bauer and Cottrell, they negotiate on your behalf unlike QDOS.

End of the day the choice is simple if they wont change it. You either suck it up or decline.

B&C offer their free negotiation service as part of their contract review costing £155 for a summary report and £190 for a full report.

Qdos offer their contract negotiation service as part of their add on £95 IR35 contract review service.

They both offer the service, you just need to ask Qdos (and pay the £95) rather than getting it automatically with B&C (when you pay £155)

[rashm2k]

If you had used Bauer and Cottrell, they negotiate on your behalf unlike QDOS.

End of the day the choice is simple if they wont change it. You either suck it up or decline.

Now you tell me! At least I've only got IR35 check with QDOS, I shall buy the rest from Bauer and Cottrell

[tractor]

...

Quick update :

My Agent contact my client, client agreed it was all OK and they sent my amended contract for my signature by then end of the day.

First time I have had a agent go over and above the call for me. Pretty pleased tbh

Does leave me wondering what I would have done if that would have not been the case! Probably would have pushed for a re-wording at that clause is very controlling.

No harm in naming the agent - it's good to know which ones are accommodating

Well done.

[Tasslehoff]

Quick update :

My Agent contact my client, client agreed it was all OK and they sent my amended contract for my signature by then end of the day.

First time I have had a agent go over and above the call for me. Pretty pleased tbh

Does leave me wondering what I would have done if that would have not been the case! Probably would have pushed for a re-wording at that clause is very controlling.

[tractor]

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If you had used Bauer and Cottrell, they negotiate on your behalf unlike QDOS.

End of the day the choice is simple if they wont change it. You either suck it up or decline.

As many of the contract templates used by agencies are cribbed from either REC or APSCO templates, many of the agents don't even know what they contain.

In many years of contracting I have never in practice had to get written permission for anything. If the reality for the OP is the same, then working practices will trump the contract in any investigation.

If the D & C and MoO clauses have been changed to comply with the legal advice the OP received then there is little risk in signing the contract.

[BolshieBastard]

Hello!

I have just had my contract reviewed by QDOS which failed on 3 points.

I fired them across to my agent, 2 were quite minor wording changes (both about RoS) which they were fine with.

However the below clause was highlighted but no alternative wording provided by QODS which I assume means they need to remove :

“It shall not fail to provide the Services at any time during the Contract Period, whether by reason of Holiday or other absence (save illness) without the Clients prior written agreement. The Supplier shall notify “Agency” in writing of any such agreed absences”

My agency have refused to remove without my Client first saying that’s fine. I can’t see my client being particularly happy for me asking to basically not turn up, without any notice. I mean if I employed a builder and he did not turn up etc etc..

Obviously I have replied to QDOS asking them for their advice. But I thought I would get your advice (and the anger/pity/chargin of NLUK obvs)

If you had used Bauer and Cottrell, they negotiate on your behalf unlike QDOS.

End of the day the choice is simple if they wont change it. You either suck it up or decline.

[CheeseSlice]

Makes me wonder if clientco has been stung in the past by a rogue contractor that took 2 months of holiday during a 6 month contract.
Why else would they go to such lengths and put such a crappy clause in the contract?

[tractor]

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Don't forget if you can prove either no D & C, No MoO or unfetttered RoS, the contract would likely be a 'pass' in respect of IR35, you only have to prove one to be outside.

[SpontaneousOrder]

My contract has the same (don't have to tell agency though - only need clients written permission). Qdos passed it fine but suggested they changed the words 'annual leave'.

I just ignore it and make sure I tell them I'll be on holiday at least a month in advance. That way I can just bin the gig if they don't like it. The reality is that the pace at client co is so slow that it's never going to be an issue for me.

[Cenobite]

I fired them across to my agent, 2 were quite minor wording changes (both about RoS) which they were fine with.

Any chance of naming the agency?

[CheeseSlice]

This clause is meant to be in the context of the LTD company entity (the Supplier), however they then talk about approving absences, which can only be applied to a worker. This is fairly sloppy IMO.

I would say that unless the clause is completely removed, or replaced with something that is only in the context of the LTD company, and not making further reference to 'approval of absence' (i.e. relating to a person), I think it would imply employment between the end client and worker.

They really just need to put some kind of wording about non-delivery by the Supplier, and what may happen if work is not delivered. Or if the provision of service is important (rather than delivery) - state that Supplier will provide services during the agreed service hours, with any periods of non-service not exceeding a certain length of time.

edit: If this was me I would absolutely wait for QDOS to explain the implications further. It sounds unusual they wouldn't have put an explanation or provided alternative wording. Maybe they accidentally left that off the report.

disclaimer: I'm just a contractor, not an IR35 expert or contract reviewer.