Reply to: Contract Terms you're uncomfortable with

[LondonManc]

Well after speaking to the agent and then speaking to the manager at the agency responsible for contracts we've managed to come to an agreement with respect to this particular clause and clean up the ambiguities.

Essentially the clause is removed. Any queries with regards to such things as performance need to be raised the same week. All timesheets that are approved ate paid, no chance that it'll be withheld after sign off. Got it all in writing.

Overall, pretty happy with it.

Good stuff. Thanks for reporting back, glad we could help.

[Illustrious]

Well after speaking to the agent and then speaking to the manager at the agency responsible for contracts we've managed to come to an agreement with respect to this particular clause and clean up the ambiguities.

Essentially the clause is removed. Any queries with regards to such things as performance need to be raised the same week. All timesheets that are approved ate paid, no chance that it'll be withheld after sign off. Got it all in writing.

Overall, pretty happy with it.

[missinggreenfields]

Employment agent?

Someone who works for an Employment Agency. Probably also extends to someone working for an Employment Business as well.

[missinggreenfields]

Only 1 agency has ever managed to do an opt out correctly...

Is this on the same scale that agents use when they say "nobody has ever refused to opt out before"?

[fidot]

I agree with removing the agency from that clause. I would also negotiate to change the clause to say that a signed timesheet is to be taken as proof that the services delivered have been acceptable.

[LondonManc]

Employment agent?

Someone who employs your services. Has your head disappeared up your 'arris to search for the thesaurus that you lost?

[northernladuk]

Employment agent?

[LondonManc]

The contract stipulates that:

No payment will be made to the contractor if the Services are, in the opinion of the agency or Client, unnacceptable. The opinion of the client and/or agent is final and no queries will be made to the client in this regard

At what point in life is an employment agent sufficiently clued up to judge whether the services that you have provided are up to scratch? Have they proof read your documents?

I'd take the agent out of it as it sounds like they are in a position to stiff you for your final invoice.

I'd also timebox it so that the client must object within five working days to the standard of services provided.

[Safe Collections]

We would echo SueEllen's advice, if the clause concerns you negotiate its removal. If the agency wont negotiate then you can accept it (and the risks it carries) or walk away.

From a contractual point of view our concern with that clause would be that if the agent decides your work is unacceptable, you can not then query that with the end client.

So potentially you could have a situation whereby the client is happy, pays the agent, the agent then makes up an excuse and you can't argue it, as you are contractually barred from seeking clarification to the contrary from the end client.

Mind you, we tend to be more suspicious than most so that would be the worst case scenario...

[SueEllen]

That's a really good link. Thank you.

Yeah maybe agents should read point 9.

If I read it correctly, it would be possible to start on site, without a written contract, based on an email exchange with the day rate and start confirmation date.
And if you agree, in an email, subject to your own Ts and Cs.
The agent is then tied into your contract.

I'm not recommending that. But a few people seem to have started their work without a contract so this does offer some protection. Although I reckon an agent with half a clue would be alerted to your email offering your Ts & Cs.

If you do you have a weaker negotiating position.

And you may still have to walk away.

Some agencies state they won't pay you without an agreed contract, so that would leave you having to take legal action to get the money for the work you did. (Obviously you would have got a signed timesheet of your own making from the client plus other proof.)

[Lance]

This is a bit of a summary on contracts linky

That's a really good link. Thank you.

If I read it correctly, it would be possible to start on site, without a written contract, based on an email exchange with the day rate and start confirmation date.
And if you agree, in an email, subject to your own Ts and Cs.
The agent is then tied into your contract.

I'm not recommending that. But a few people seem to have started their work without a contract so this does offer some protection. Although I reckon an agent with half a clue would be alerted to your email offering your Ts & Cs.

[ShandyDrinker]

Given what the OP has said it really does depend on the attitude to risk.

I would run a mile from that contract as it's heads they win and tails you lose.

[SueEllen]

I would have thought that it was in the agents best interest to ensure that a candidate opting out has definitely done so. I'll have to work in the assumption that since I've indicated I'll opt out and they have told be that I am opted out that that's my current status for now.

Completely wrong - you need to presume agencies know nothing about the law until they prove to you otherwise and even then because they won't be a judge on your case with them (if you unfortunately end up having one), take what they say with a pinch of salt.

Well even though it's Saturday I've text and emailed the agent just to let him know that the clause is giving me cause for concern.

I would turn the contract down if it had that clause in it and the agency refused to negotiate. As long as you don't go on the client's site until the contract is sorted to your satisfaction you will be fine.

I've told him what I've said here I said here; if they said that within 7 days they would determine my suitability/capability for the role I'd be more than happy in those terms. But when the clause is ambiguous to what exactly the criteria they measure this by and give no timeframe to make such decisions then I'm afraid that i won't be able to accept the role.

I can't take the risk that they'll can me after 4 weeks, pay nothing and have waived any right to legal recourse.

I've been told by different solicitors and a barrister just because it is in a contract it doesn't make it legal, more so if you haven't used a lawyer e.g. someone who is a solicitor on the SRA or a barrister/advocate at the bar to review the contract.

Also the fundamental rights of people and companies in law cannot be overridden - in other words you cannot tell someone they cannot take legal action against you. It is up to the court to decide whether your case should progress or be thrown out on it's merits not the other party.

This is a bit of a summary on contracts linky

[MrMarkyMark]

I would have thought that it was in the agents best interest to ensure that a candidate opting out has definitely done so. I'll have to work in the assumption that since I've indicated I'll opt out and they have told be that I am opted out that that's my current status for now.

Your assumption is likely to be incorrect, as most agencies, just like yourself, do not understand the legislation.

[Illustrious]

Just because the paperwork claims you are doesn't mean you actually are. Only 1 agency has ever managed to do an opt out correctly...

If you are concerned the only thing you can do is speak to the agency abou the clause making clear that you don't understand it, aren't happy with it and will be speaking to the technical director personally to apologise if it isn't sorted (so they can't say you've pulled out because of something else).

I've usually found agencies are happy to change clauses when you state my lawyer is unhappy with this clause exactly what do you mean by it and how is it used and if you are happy with the explanation get it in writing if not walk away.

I would have thought that it was in the agents best interest to ensure that a candidate opting out has definitely done so. I'll have to work in the assumption that since I've indicated I'll opt out and they have told be that I am opted out that that's my current status for now.

Well even though it's Saturday I've text and emailed the agent just to let him know that the clause is giving me cause for concern.

I've told him what I've said here I said here; if they said that within 7 days they would determine my suitability/capability for the role I'd be more than happy in those terms. But when the clause is ambiguous to what exactly the criteria they measure this by and give no timeframe to make such decisions then I'm afraid that i won't be able to accept the role.

I can't take the risk that they'll can me after 4 weeks, pay nothing and have waived any right to legal recourse.