Reply to: Verbal vs written contract

[quackhandle]

4 hours a day in the car? Your probably better off not getting it.

Had this issue with Sanderson, its in the Opt Out thread. They tried to bring the AWR act into play but it has no bearing on Agency Opt Out regs. In the end had to Opt out, but left after 4 weeks.

qh

[BlasterBates]

Phoned up to verbally accept (subject to contract) the gig this morning to be told it's been pulled by the clientco.
I'm trying hard not to think it's BS but I'll be keeping an eye to see if it pops up on jobserve again.

No probably not, there's a recession on so that's fairly normal. Usually at this stage there is a high level sign off at the client co and they obviously didn't get it.

[Harmonic]

Phoned up to verbally accept (subject to contract) the gig this morning to be told it's been pulled by the clientco.
I'm trying hard not to think it's BS but I'll be keeping an eye to see if it pops up on jobserve again.

[BlasterBates]

A verbal agreement is legally binding but no-one is going to enforce it. If you verbally agree and the turn them down that would be seen as unprofessional.

Better to be honest and say you're weighing your options and you'll give them an answer in a couple of days, and then pressure the other clients. If you haven't yet had the interview I would just accept what you have and be done with it.

[TheFaQQer]

I can't see that there is any reason why the substitution clause would require a contractor to opt-out.

It doesn't.

That's a dirty trick.

Yep.

I had a big row some years back with Ajilon about this - I insisted I couldn't opt out because I'd interviewed, so it was irrelevant, but the contract that they offered first was incredibly IR35 un-friendly (think of everything you want in the contract, then write the exact opposite - personally mentioned, no substitution, etc.). If I opted out, then they would give me an IR35-friendly contract. I kept saying I couldn't opt out, they kept saying I could.

They got as far as saying take it or leave it. It was only when I said "so, do you want me to ring the client and tell them I'm not going to be there on Monday, then?", that it got passed up the chain to "legal" who decided that I was right all along.

[Wanderer]

So far they've sent me a template of "the standard contract for everyone who works with this client". It has "Regulations Status - Opt Out" on the first page and also "Specified Consultant" but the other bit the concerns me is the section covering Substitution is prefaced with "If the regulations do not apply...". It looks to me like they are trying to force me to choose between opting out or being in IR35.

I can't see that there is any reason why the substitution clause would require a contractor to opt-out. That's a dirty trick. Who is the agency, are they a member of the REC or some professional body?

[cojak]

It's a three month contract. I'm fairly chuffed at getting the offer as I get made redundant from my permie job on Friday and this is due to start Monday. We've got decent savings, plus the tax free month in lieu of notice payment so I'm not desperate but at the same time it makes sense to start a new contract as fast as I can.

Then get Bauer & Cottrell or Qdos to review the contract and negotiate that out of the contract. They can turn the reviews around quickly.

Don't be pushed into accepting it by the old "the client needs you in on Monday" routine.

[mudskipper]

If OP has met the client, it's too late to opt out anyway.

My agent never mentioned opting out. My contract says 'Limited company - opted out' and that was the first I'd seen of it. As I got the contract 3 days after starting at the client (yes, I know...) I decided not to make an issue of it - as far as I'm concerned it's irrelevant.

[TheFaQQer]

It depends on how the agent conducts themselves.

If they drop the contractor because they refuse to opt-out then they are breaking the law.

If they give a different contract they aren't.

If they put "opted-out" all over the contract and didn't manage to get a separate opt-out before the contractor was introduced to the client they are.

Also some of the better agencies I've dealt with don't give a separate contract they just have a statement making it clear that the following clauses only apply if you are "opted-out".

They aren't dropping the contractor, though. The agency have offered a contract, which the contractor does not want to sign. That's a completely different matter than "opt out or we won't represent you", which I agree would be illegal.

[TheFaQQer]

Yes they are -

The OP said "biggest sticking point is that the substitution clause is dependent on signing the Opt-out.
".

Which bit of the Agency Regs impacts your ability to send a substitute?

Which bit of the agency regulations means that they have to offer a contract which contains a substitution clause in it?

They are not making the OP opt out - if the OP wants a contract that includes a substitution clause in it, then they opt out. If they want to stay opted in, then they either negotiate a contract accordingly, or they sign the one on offer, or they walk away.

(Regardless of whether the opt out would be valid or not, which is a completely separate argument).

[Harmonic]

So far they've sent me a template of "the standard contract for everyone who works with this client". It has "Regulations Status - Opt Out" on the first page and also "Specified Consultant" but the other bit the concerns me is the section covering Substitution is prefaced with "If the regulations do not apply...". It looks to me like they are trying to force me to choose between opting out or being in IR35.

[malvolio]

They aren't breaking the law.

Yes they are -

The OP said "biggest sticking point is that the substitution clause is dependent on signing the Opt-out.
".

Which bit of the Agency Regs impacts your ability to send a substitute?

[SueEllen]

They aren't breaking the law.

It depends on how the agent conducts themselves.

If they drop the contractor because they refuse to opt-out then they are breaking the law.

If they give a different contract they aren't.

If they put "opted-out" all over the contract and didn't manage to get a separate opt-out before the contractor was introduced to the client they are.

Also some of the better agencies I've dealt with don't give a separate contract they just have a statement making it clear that the following clauses only apply if you are "opted-out".

[TheFaQQer]

And point out that if they want to make anything dependent on you opting out, they're breaking the law.

They aren't breaking the law.

They are enforcing an agency policy which dictates that potential suppliers who do not opt out of the agency regulations will be given a different contract. There is nothing illegal in doing this.

If you are inside the regulations, then you can invoice at any stage for the work and expect to get paid. Many agencies will have a clause with the client that says that they must invoice within a certain time period or risk not getting paid (e.g. must invoice within six weeks of the work). That's an additional risk that they take by working with someone who is opted into the regulations, so it is perfectly logical to offer a contract which differs.

[Harmonic]

It's a three month contract. I'm fairly chuffed at getting the offer as I get made redundant from my permie job on Friday and this is due to start Monday. We've got decent savings, plus the tax free month in lieu of notice payment so I'm not desperate but at the same time it makes sense to start a new contract as fast as I can.