Reply to: Received first contract from agency - has almost no terms - is this typical?

[Wanderer]

If you send agent an email saying you don't think the contract reflects the working relationship and include a PCG contract/T&Cs is it still that clear cut?

Depends on the nature of the emails and you would need professional (read expensive) advice on what was or wasn't enforceable under law. I'm not a lawyer, just a contractor who has done battle with a few dodgy agencies.

The scenario that I envisage is that the agency offer the contractor a piece of work, the contractor accepts verbally or perhaps in an informal email, subject to a mutually agreeable contract of course.

The agency sends through a contract, signed by them and naming a start date. The contractor doesn't like the look of the contract but starts work anyway, it's game over because a contract doesn't have to be signed for it to be binding. If you get a contract offered to you and you start work then you have accepted the contract - signed or not. Those issues you raised are presumed to have been resolved because you accepted the contract by starting work.

To spin it around the other way, you could try to pre-empt things and force the agencies hand by sending them a copy of a signed contract between yourLTD and the agency (the PCG do some nice templates) and in the absence of any contract from the client/agency they may be deemed to have accepted your contract if the client allows you to start work.

Of course there will be a load of bluff and bluster from both sides.

Personally, I find the the friendliest way to do business is to get everything clarified upfront BEFORE you start doing the job as it focuses peoples minds on getting things sorted. If you try to sort out issues after you've started the job then you are in a very weak position.

That said I've dealt with people who will sign a contract, start work and then try to renegotiate once the work is well under way. I find it very unpleasant and stressful. Not suggesting that anyone here does this but I've come across it a few times and I suspect that some people do it deliberately as their way of doing business.

[minstrel]

Once you have started work on site it's game over - you have accepted the contract, signed or not.

If you send agent an email saying you don't think the contract reflects the working relationship and include a PCG contract/T&Cs is it still that clear cut?

[northernladuk]

Yes, well aware of that. But maybe I might begin to know the first thing about something after 3 months.

That's the spirit!!

[Wanderer]

On the Opt-out Hex - thanks, for the tip but I'm totally confused (after a lot of reading around) - lots of personal advice on forums not to opt out and yet PCG says that I should opt out and most members do, it's an IR35 risk blah blah. I've already met the client so apparently it's invalid anyway...

The PCG advising a first time contractor to opt out is 100% wrong. The reason the PCG advise that people should opt out is that they fought to secure an opt out of the regulations but it turned into a massive own goal as it benefits no one except employment agencies/employment businesses.

There are very good reasons NOT to opt out of the agency regulations, it doesn't affect your IR35 status one bit and the restraint of trade the agency is trying to force on you (and the client) will not be possible if you don't opt out. Read the sticky for a long discussion of them. There are also lots of posts here from people crying because the agency has screwed them and they could have avoided this if they did not opt out.

Also be aware that the agency are deliberately playing games with you by sending you the contract at the 11th hour. This is so you won't have much time to review it and ask for changes etc. Once you have started work on site it's game over - you have accepted the contract, signed or not. The less time you have to review it and ask questions the better as far as the agency is concerned.

I suggest that you sign and return the contract by email and attach a letter telling them "I have not yet started working for the client and MyLTD has decided to withdraw the opt out of Conduct of employment agencies act, therefore the agency regulations will apply to this engagement". You are entitled to do this under law but you must do it BEFORE you start work for the client if your withdrawal of the opt out is going to be valid. If the agency call you up to try and bluff you, telling you it's too late to withdraw the opt out or argue the point about it then do not be drawn into a discussion with them. If they think you can't withdraw the opt out then that's up to them.

[LJM]

What I would do in this situation is send an email to agent explaining that you are not sure the contract fully reflects the terms under which you are providing services and attach PCG standard terms. Explain that you are getting the agency draft contract reviewed, but to avoid any potential inconvenience for the client you will turn up to client site while it is being reviewed.

Great idea, thanks.

[minstrel]

Ah, yes, here it all is - lots of IR35-safe clauses (good) and a rather horrid 12 month restriction on working direct for the client (bad), etc. Would I be cutting off my nose to spite my face to say that although I'll start work, I want to get this reviewed before signing it (as the agency are at fault for being so late in providing it). Or should I not start work without an agreed contract under any circumstances? Any views?

If you haven't opted out of the agency regs then the 12 month restraint clause is not allowed. Even if you have opted out it's possible it would not be enforceable as others have said.

I've been faced with similar situations where I've been asked to start before I've had time to independently review contract. I take the view that comparing the relatively low probability of being investigated and found to be inside IR35 against the guaranteed loss of income if you stall for a couple of days to get it reviewed, it's best to turn up anyway without a signed contract.

What I would do in this situation is send an email to agent explaining that you are not sure the contract fully reflects the terms under which you are providing services and attach PCG standard terms. Explain that you are getting the agency draft contract reviewed, but to avoid any potential inconvenience for the client you will turn up to client site while it is being reviewed.

[LJM]

One 3 month contract shouldn't make it go away though.

Yes, well aware of that. But maybe I might begin to know the first thing about something after 3 months.

[northernladuk]

All interesting stuff - thanks. I'm just going to go for it tomorrow, but make sure I'm better armed for the renewal or next contract.

Hate that newbie feeling....

One 3 month contract shouldn't make it go away though.

[LJM]

All interesting stuff - thanks. I'm just going to go for it tomorrow, but make sure I'm better armed for the renewal or next contract.

Hate that newbie feeling....

[SteelyDan]

From what I read on here they cannot enforce a 12 month clause as it breaches your right to work or something so wouldn't worry about that. 6 monthers seem to be the agreed max. This is all from chatting with no evidence of course.

Yep agreed, hence my comment about realistically assessing impact & likelihood of it happening...

[northernladuk]

I'd be worried about this ^ bit, but you need to realistically assess the impact and likelihood of this. Are you happy with a restriction of trade clause?

Turning up would be interpreted as acceptance of things as they are.

From what I read on here they cannot enforce a 12 month clause as it breaches your right to work or something so wouldn't worry about that. 6 monthers seem to be the agreed max. This is all from chatting with no evidence of course.

[TheFaQQer]

a rather horrid 12 month restriction on working direct for the client (bad), etc.

I'd be worried about this ^ bit, but you need to realistically assess the impact and likelihood of this. Are you happy with a restriction of trade clause?

Turning up would be interpreted as acceptance of things as they are.

Chances are that if it went to court, it would be struck out. And there is probably something just as bad between client and agency anyway.

Plus - given the lateness in the day for paperwork, do you really think the agency got the OP to opt out, in writing, properly, before being introduced to the client???

[SteelyDan]

[QUOTE=LJM;1481794] a rather horrid 12 month restriction on working direct for the client (bad), etc. QUOTE]

I'd be worried about this ^ bit, but you need to realistically assess the impact and likelihood of this. Are you happy with a restriction of trade clause?

Turning up would be interpreted as acceptance of things as they are.

[TheFaQQer]

Ah, yes, here it all is - lots of IR35-safe clauses (good) and a rather horrid 12 month restriction on working direct for the client (bad), etc. Would I be cutting off my nose to spite my face to say that although I'll start work, I want to get this reviewed before signing it (as the agency are at fault for being so late in providing it). Or should I not start work without an agreed contract under any circumstances? Any views?

If you turn up, then you've accepted the contract as it currently stands.

Welcome to the world of dealing with agencies! They tend to leave things like this to the last minute - I presume because they worry that if you sign it and then it all dies, they'll have to pay you something. It's important to get the paperwork quickly, though - next time, tell them that you will need to get it reviewed and this will take five working days to get done.

Might be worth sending it over to Qdos anyway and see what they say, but be prepared for a fail, and what you want to do after that. Also, if you've not done so already, join PCG and get their plus package.

[LJM]

Right, I'm off to read my real contract with 4 minutes left of the working day to query anything I don't like

Ah, yes, here it all is - lots of IR35-safe clauses (good) and a rather horrid 12 month restriction on working direct for the client (bad), etc. Would I be cutting off my nose to spite my face to say that although I'll start work, I want to get this reviewed before signing it (as the agency are at fault for being so late in providing it). Or should I not start work without an agreed contract under any circumstances? Any views?