Reply to: Strange Contract Terms

[malvolio]

I refer back to my first post in this thread. The agency is not one to trust or work with. Would love to know who they are.

[SussexSeagull]

Unless you need the money I would be tempted to walk. If you are being paid for a day's work then you should receive that payment when you do a day's work and not be subject to some vague quality threshold.

As for varying day rate and payment terms, if they were going to do that they would do it anyway. However I would insist on no notice period if you don't like the new terms they are offering.

[Samm]

and just to add to that no idea why the agent is speaking to his director and not his legal team - clearly profit considerations.

[Samm]

So this has taken a u turn - after telling me yesterday that they fully agreed with why I am pushing back and will change it they come back today and tell me that the changes have been reviewed by their director and unfortunately cannot accept it. The changes I asked for in the directors opinion will bring the determination inside IR35. If the end client has completed an SDS and determined its outside then how can this be? The director also expressed concern that this places the risk firmly on the agency and they are not willing to accept that.

I am confused - what risk? All I have asked them to change is to change the clause that states that if they give notice they have no obligation to make payment for the notice period (whats the point of a notice period if im not being paid for it?), asked them to remove that the agency are entitled to take a max of 10 days of damages for any loss that the agency may suffer as a result of termination of contract services, and the clause where they want me to agree that the agency are fully entitled to set off against any payments owed to me pursuant to the clause relating to the 10 days they want to claw back if im terminated!

Also noticed a new section on the updated contract titled `variations` where it states that the agency reserves the right to vary this contract (which may include but is not limited to changes to the day rate and payment terms).

Am I going bonkers or is this contract the whole thing a total shambles and they basically just want to fleece me and aren't even embarrassed about it!

So they have given me 3 options, to either accept the contract as is, use an umbrella company or the agency will source a replacement but apparently this option makes the client and the agency uncomfortable. Last point is bulltulip because the client wouldn't know of the exact agreement and terms between myself and the agency.

Any thoughts?

[SussexSeagull]

I certainly wouldn't have signed it. If they choose to engage people on a day rate basis they can honour that.

[Snooky]

Update: Client has removed all clauses I challenged and claimed it was a generic contract they had sent me apparently

Nice result!

[Samm]

Update: Client has removed all clauses I challenged and claimed it was a generic contract they had sent me apparently

[ComplianceLady]

Just to say client contracts in Europe are quite common to have a 10 day rebate period if the contractor doesn't work out - sounds like the agent either have that with this client or have had to 'back to back' that risk before and have decided to incorporate it into their standard terms. If they haven't signed up to it with this specific client they will remove it if you ask.

[BlasterBates]

There 's no point in delaying the contract for two weeks and definitely losing two weeks income to prevent a "10% possibility" of losing two weeks income.

The hard nosed business decision is to calculate your likely income if you accept or decline and maximise your income. No harm in pushing back for a day or two but if it drags on you'll be out of pocket. Nothing to stop you looking for an alternative and jumping ship if you can find one.

I sometimes took rate cuts on this basis. The contractors that left in a huff ended up out of pocket because it took a while to get a new contract.

Do a "hard-nosed" calculation and choose the path of maximising your income, rather than "social justice".

[Samm]

What does clause 4/1 actually say? If it's vague I'd also be looking to get that nailed down so that they could only do this if they could explicitly prove a lack of competence by specific agreed measures (still seems unreasonable, but they may give way on the precision of the competence measures more than they will on the penalty for not meeting them).

But as others have said, you may have to choose between more weeks with no income or the remote chance of losing 10 days income.

This is clause 4.1:

The contractor services will therefore be monitored continuously to ensure that competence to the requisite quality and quantity required by Agency X and Agency X's client is achieved within the required timescales (which will typically be in 2 weeks or 4 weeks of the start date); and once (and if) initial competence is demonstrated it is maintained for the duration of the term of the assignment.

[Snooky]

In the event that Agent X or Agent X's client believes that you or the contractor have failed to maintain the level of competence required under clause 4/1

What does clause 4/1 actually say? If it's vague I'd also be looking to get that nailed down so that they could only do this if they could explicitly prove a lack of competence by specific agreed measures (still seems unreasonable, but they may give way on the precision of the competence measures more than they will on the penalty for not meeting them).

But as others have said, you may have to choose between more weeks with no income or the remote chance of losing 10 days income.

[Samm]

Have you decided to use Paystream for this, in the hope of getting SMP, or are you going to do this through your Ltd?

I am using my limited company, they only told me last minute that it was an outside IR35 contract and I've been running around like a headless chicken trying to get my company started again as it lay dormant recently due to a few inside gigs. I will probably tell my accountant now to hold fire before he starts my accounting package again until this contract has been reviewed.

Thanks for comments and help so far guys, I appreciate it. Nearly 6 months pregnant and thought this was a decent little gig that tides me over but I'm just not sure now and just wondering if its worth it at all with the stress I'm going through with it.

[gixxer2021]

I can sympathise with this, nearly every agency I’ve worked with will try and send out the contract the night before it’s due to start. I’ll always tell them up front I’ll be doing a review and won’t start till it’s been signed off (they’ll still do it even then!). Due to this start dates are quite often delayed (client can also delay too).

Is this a smaller company re IR35? If it was me and I was really unhappy with the contract I’d consider letting them know you’re getting the contract reviewed, and therefore won’t be able to start till that’s signed off. You do run a risk of upsetting the client though, or the agency might have a backup and will drop you.

For IR35 reviews B & C are excellent, and can usually give a quick turnaround if you ask them. For other contract enquiries, if you need a quick response then the free ones with your insurance (e.g. IPSE) can give some reassurance, but I’ve used Lawbite for other non IR35 queries exactly like this and found them good value.

[WTFH]

Have you decided to use Paystream for this, in the hope of getting SMP, or are you going to do this through your Ltd?

[cojak]

Pushing to start Monday is an old ploy. Don’t fall for it. Tell them that you are getting the contract reviewed and will sign and turn up once that has happened. Be a business and be confident as a contractor.

I’m with Mal on this. If they actually do drop you then the contract wasn’t for you.