NDA specifies agency employee

[Dark Black]

Sorted

Agency chased me up at the beginning of the week as the contract start is imminent. I re-iterated that I wasn't happy signing the forms as they stood, and this time he asked me if I would re-word them to something I was happy to sign and then he would pass them to the client to verify they were happy.

Have now done this, client has accepted (and admitted they need to change the default wording in future).

Result

(would have been nice if the agent had let me do it in the first place though...)

[BHicks]

If you had a decent agent, he'd ring legal at the client and point out that a mis-statement like this might invalidate the NDA since you simply aren't an employee and certainly leaves the client open to various IR35 and employment law hassles.

Since you don't have a decent agent, have you tried contacting their inhouse legal or if all else fails HR ?

The other thing that a lawyer will tell you is that just as important as what's in writing (eg in the NDA itself) is what the intention of the parties was at the point of signing?

How do you demonstrate intention in a situation like this you may be wondering?

A suitable email to your agent confirming that the NDA is badly worded but that you're signing this anyway as a non employee since you fully understand the client's need to address the issue of non disclosure. This has you nicely covered should any future issues arise.

Then as advised elsewhere, file in the 3 month retention pile and get on with the gig

[Wanderer]

HMRC might wave it about

Sign it and then file it away in the pile of tulipe marked for 3 month retention. By the time HMRC come looking, you would have dumped it and potentially "forgotten" that it exists.

[Old Greg]

I think Dominic's point is first thing to do and actually correct the document to fit the situation. Point out to the client that the incorrect terminology could render it completely unenforceable and pointless. If they don't back down then I wouldn't worry about signing it too much. While HMRC might wave it about it will be very easy to point out it is a wording error but the reason for signing it is still valid and is applicable to anyone, permies, subcontractors, 3rd parties etc so has no bearing on your relationship with the client or employment status.

If HMRC want to see such documentation as evidence of employment, then they would presumably accept an NDA with the term 'sub-contractor' as evidence of non-employment.

[northernladuk]

I don't think signing a badly drafted form in any way impinges on your real status as a contractor. You are just agreeing (as an individual) to not disclose the client's confidential information.

The only purposes of the document are to re-inforce the rules in your mind and to confirm that you had been made aware of them. Otherwise they could have a single document (agreement) with the agency obliging the agency to bind all their employees/contractors etc to the NDA conditions.

I think Dominic's point is first thing to do and actually correct the document to fit the situation. Point out to the client that the incorrect terminology could render it completely unenforceable and pointless. If they don't back down then I wouldn't worry about signing it too much. While HMRC might wave it about it will be very easy to point out it is a wording error but the reason for signing it is still valid and is applicable to anyone, permies, subcontractors, 3rd parties etc so has no bearing on your relationship with the client or employment status.

[Dominic Connor]

Ring legal

If you had a decent agent, he'd ring legal at the client and point out that a mis-statement like this might invalidate the NDA since you simply aren't an employee and certainly leaves the client open to various IR35 and employment law hassles.

Since you don't have a decent agent, have you tried contacting their inhouse legal or if all else fails HR ?

[Taita]

Finally have a start date for the contract that was offered an age ago. Contract paperwork is fine and the same as I've used (and reviewed) previously so no worries there.

However, I've also been asked to sign a <ClientCo> NDA (of which I have no problem at all in principle). The problem is that the declaration I have sign states that I am an employee of the agency.

Now clearly this a <ClientCo> standard document for temporary workers, but that doesn't fit for contractors. I'm not happy signing what is actually a false statement - i.e. I'm not an employer of the agency. Wouldn't this be a fraudulent statement?

I have discussed this with the agent (I've worked with them before for other clients, and always found them to be one of the better agencies around) but they say the client won't accept altered forms (e.g crossing out employee and replacing with the word contractor). Apparently someone did it before and it was caught and rejected.

Likewise apparently this is the only NDA for non-employees that the client uses.


I know I can just refuse and walk but I could do with the work since I'm still finding the market quiet. Opinions?


p.s. I'm aware there are other threads discussing similar but all seemed to relate the NDA itself not the "employee" issue

I don't think signing a badly drafted form in any way impinges on your real status as a contractor. You are just agreeing (as an individual) to not disclose the client's confidential information.

The only purposes of the document are to re-inforce the rules in your mind and to confirm that you had been made aware of them. Otherwise they could have a single document (agreement) with the agency obliging the agency to bind all their employees/contractors etc to the NDA conditions.

[Moscow Mule]

I always sign stuff like that thus:

Moscow Mule
Director
Mule Enterprises Ltd.

[Dark Black]

Cross out Employee, replace it with Sub Contractor, initial it and return

That would have been my plan also but it has been tried before apparently - the client threw it out...

[SimonMac]

Cross out Employee, replace it with Sub Contractor, initial it and return

[Old Greg]

Finally have a start date for the contract that was offered an age ago. Contract paperwork is fine and the same as I've used (and reviewed) previously so no worries there.

However, I've also been asked to sign a <ClientCo> NDA (of which I have no problem at all in principle). The problem is that the declaration I have sign states that I am an employee of the agency.

Now clearly this a <ClientCo> standard document for temporary workers, but that doesn't fit for contractors. I'm not happy signing what is actually a false statement - i.e. I'm not an employer of the agency. Wouldn't this be a fraudulent statement?

I have discussed this with the agent (I've worked with them before for other clients, and always found them to be one of the better agencies around) but they say the client won't accept altered forms (e.g crossing out employee and replacing with the word contractor). Apparently someone did it before and it was caught and rejected.

Likewise apparently this is the only NDA for non-employees that the client uses.


I know I can just refuse and walk but I could do with the work since I'm still finding the market quiet. Opinions?


p.s. I'm aware there are other threads discussing similar but all seemed to relate the NDA itself not the "employee" issue

Sign it as:

Dark Black
Company Director
Dark Black Co.


Hard to see fraud there. Forget it and get on with invoiceing.

[Dark Black]

Finally have a start date for the contract that was offered an age ago. Contract paperwork is fine and the same as I've used (and reviewed) previously so no worries there.

However, I've also been asked to sign a <ClientCo> NDA (of which I have no problem at all in principle). The problem is that the declaration I have sign states that I am an employee of the agency.

Now clearly this a <ClientCo> standard document for temporary workers, but that doesn't fit for contractors. I'm not happy signing what is actually a false statement - i.e. I'm not an employer of the agency. Wouldn't this be a fraudulent statement?

I have discussed this with the agent (I've worked with them before for other clients, and always found them to be one of the better agencies around) but they say the client won't accept altered forms (e.g crossing out employee and replacing with the word contractor). Apparently someone did it before and it was caught and rejected.

Likewise apparently this is the only NDA for non-employees that the client uses.


I know I can just refuse and walk but I could do with the work since I'm still finding the market quiet. Opinions?


p.s. I'm aware there are other threads discussing similar but all seemed to relate the NDA itself not the "employee" issue