Reply to: Negotiating restriction / handcuff clause

[Taita]

Whichever suits them best regardless of the situation.

Yup. Could be on thing today and another tomorrow...... black is white and white is black according to the situation in hand. I think George Orwell called it Agency Speak!

[northernladuk]

Just out of interest, how do agencies interpret "introduction or supply"?

Thanks

Whichever suits them best regardless of the situation.

[fidot]

what's your interpretation?

Again comes down to interpretation of the magical "introduction or supply". You have your view, we have ours

Just out of interest, how do agencies interpret "introduction or supply"?

Thanks

[Taita]

Indeed it does

How many cases have S3 taken to court about it, though? I know Rory Dwyer's lot had that one case that he kept bleating about, but how many have you argued?

Based on my previous experiences with agencies (none S3, granted), I'd take my chances in court to show that the opt out wasn't done properly.

Actually TF you are on safe ground here. The agencies are going to come unstuck in Court because the interpretation will hinge on the 'Spirit' rather than the 'Letter' of the law and we all know this legislation was anti agency...... it was delivered in the heady days of NL* Power, before they realised they could gain more personally from embracing employers rather than workers!

*historical note: NL now known as the Out-in-the-Wilderness or Who-am-I, party.

[Taita]

Indeed it does

How many cases have S3 taken to court about it, though? I know Rory Dwyer's lot had that one case that he kept bleating about, but how many have you argued?

Based on my previous experiences with agencies (none S3, granted), I'd take my chances in court to show that the opt out wasn't done properly.

Actually TF you are on safe ground here. The agencies are going to come unstuck in Court because the interpretation will hinge on the 'Spirit' rather than the 'Letter' of the law and we all know this legislation was anti agency...... it was delivered in the heady days of NL* Power, before they realised they could gain more personally from embracing employers rather than workers!

*historical note: NL was once a political party which briefly governed the UK.

[TheFaQQer]

Again comes down to interpretation of the magical "introduction or supply". You have your view, we have ours

Indeed it does

How many cases have S3 taken to court about it, though? I know Rory Dwyer's lot had that one case that he kept bleating about, but how many have you argued?

Based on my previous experiences with agencies (none S3, granted), I'd take my chances in court to show that the opt out wasn't done properly.

[SueEllen]

Again comes down to interpretation of the magical "introduction or supply". You have your view, we have ours

No case has gone to the high court or supreme court so until then we are right and you are wrong.

Personally that bit of legislation is such a mess I would concentrate on the other clauses in the contract......

[Andy Hallett]

For the opt out to be valid, both contractor and umbrella need to do so in writing, before being introduced to the client.

So chances of you being opted out properly are negligible.

Which then renders the handcuff period irrelevant, because you can go direct eight weeks from the end of the contract without the agency charging you or the client any fees.

Again comes down to interpretation of the magical "introduction or supply". You have your view, we have ours

[TheFaQQer]

For the opt out to be valid, both contractor and umbrella need to do so in writing, before being introduced to the client.

So chances of you being opted out properly are negligible.

Which then renders the handcuff period irrelevant, because you can go direct eight weeks from the end of the contract without the agency charging you or the client any fees.

[Antman]

12 month handcuff clause is unreasonable unless your skills and knowledge are so unique someone could possible know the few other people in the country/Europe/world with them.

If you start negotiating about it you could end up with one that can be enforced.

If you get your contract reviewed by someone who understands and is qualified in contract law not just IR35 issues they will ask for it to be removed as it's their job. You could end up in a worse situation legally if they don't.

Anyway it's more important to find out what type of end-client you have when it comes to these sort of issues. Some will tell agents where to go, while others will run scared. I always try to get the end-client contact details so when agencies try these tricks I can ask them directly.

My thoughts too.

[SueEllen]

12 month handcuff clause is unreasonable unless your skills and knowledge are so unique someone could possible know the few other people in the country/Europe/world with them.

If you start negotiating about it you could end up with one that can be enforced.

If you get your contract reviewed by someone who understands and is qualified in contract law not just IR35 issues they will ask for it to be removed as it's their job. You could end up in a worse situation legally if they don't.

Anyway it's more important to find out what type of end-client you have when it comes to these sort of issues. Some will tell agents where to go, while others will run scared. I always try to get the end-client contact details so when agencies try these tricks I can ask them directly.

[northernladuk]

Not sure why you are so worried about the handcuff. So few of them are enforceable. Even if you got it down to the minimum the client won't wait for you anyway TBH.

For a handcuff to be enforceable it has to fair and reasonable. This means the agent has to directly lose money for it to stand up. Going back to the client in another role that the agent isn't representing means the clause won't stand.

I'd do more reading in to handcuffs than bugger around with opt in/out statements and actually understand what they entail and their limitations.

[Contreras]

The agent will just say you are not to turn up on site until it is signed

Yes they could, but if it was so critical you would think that it would have been insisted upon sooner.

If the OP has managed to avoid any debate about the opt-out so far (the best tactic IMHO) then I suggest it's not something the agent is going to risk the deal upon at this late stage.

The fly in the ointment in this case is the contract itself stipulates acceptance of the opt-out.

Personally I would be more focussed on payment terms than the handcuff.

IR35 should be a moot point as the OP is going via umbrella.

[jmo21]

Does the contract also state that certain clauses (handcuff, etc.) only apply if the contractor is opted-out? All mine have had this and assuming that is also the case here then I would:

- Sign and return the contract
- Neglect to return the opt-opt form
- Turn up on site on Tuesday

Up until the start date you are "still thinking about it" or "must have missed that bit". There will be a certain amount of wailing and eventually once on-site and billing, probably, they will give up asking.



That is a fair point - personally I wouldn't bother for exactly the point you raise and because how it would be handled/ignored in practice would be as much about client attitude as what the contract says.

You say the contract is clear in its payment terms. Does it withhold payment, absolutely, without an authorised timesheet? Does it withhold payment until the client has paid? People have had a problem with these in the past and particularly via an Umbrella it can be a royal pain to resolve.

You are no doubt aware that not opting out affords some protection against the above restrictions, or at least gives the agency one less excuse.

The agent will just say you are not to turn up on site until it is signed

[mudskipper]

It is worth getting your contract professionally reviewed. I had a 6 week contract, which looked fine to my inexpert eye, so didn't bother. Three and half years and 7 renewals later, I really wish I had - not that anything has bitten me in terms of day to day operation, but from an IR35 point of view I'd like it to be watertight.