Reply to: two contracts in hand. Suggestions pls

[Wanderer]

In my case the contract document itself had a clause saying I am opting opt out. So that opt out is invalid then. ?

It's a grey area because section 32(9) of the legislation is not clear. People have opinions about what it means as they have stated in this discussion but the fact is that we really won't know for sure until someone has tested it in court. This will most likely never happen because agencies would back down before it got to court and/or contractors wouldn't take it that far anyway.

[Boo]

Erm, isn't introduction interview time so no contract?

I was under the impression that introduction is when the two first meet at interview. The supply option is there in case the contractor and client already know each other?

Introduction is the point at which the client could identify you as an individual.

No, introduction means introduction into the workforce, for the reason I gave in my post (now highlighted). As I said, it's the PCG who have spread the misinformation you have been given.

Boo

[northernladuk]

Introduction is the point at which the client could identify you as an individual.

So even earlier than interview. Makes sense.

[Antman]

Needs a court case to decide definitively.

[TheFaQQer]

Erm, isn't introduction interview time so no contract?

I was under the impression that introduction is when the two first meet at interview. The supply option is there in case the contractor and client already know each other?

Introduction is the point at which the client could identify you as an individual.

[northernladuk]

Introduction is supply.

The word introduction in the context of the regs means the point in time that the worker is introduced into the work force. Supply means the point in time that the supply of services commences. These are the same thing in contractual terms because it is at that point that the contract is instantiated as a legal entity.

The reason there is some uncertainty about this on contractor forums is that the PCG scored such a massive own goal with the agency regs opt-out that they needed to spread uncertainty as a fig leaf for their embarassment. But if you ask any solicitor their opinion as to the wording of the regs they will tell you the same thing that I have done.

Boo

Erm, isn't introduction interview time so no contract?

I was under the impression that introduction is when the two first meet at interview. The supply option is there in case the contractor and client already know each other?

[Boo]

What do you mean by opt out was done properly. I have searched this forum for discussions on opt out.

A quote from you in this thread is as below:

There is some debate about when the opt out needs to be done. What the legislation says is that the opt out must be done "before the introduction or supply" of the worker. Lots of people say that they take this to mean that opt out is not valid unless it's done before the introduction but it could also be argued that the opt out is valid if it's done after the introduction but before the supply (eg, before you start working). It's a grey area and as far as I know it's never been tested in court.

Introduction is supply.

The word introduction in the context of the regs means the point in time that the worker is introduced into the work force. Supply means the point in time that the supply of services commences. These are the same thing in contractual terms because it is at that point that the contract is instantiated as a legal entity.

The reason there is some uncertainty about this on contractor forums is that the PCG scored such a massive own goal with the agency regs opt-out that they needed to spread uncertainty as a fig leaf for their embarassment. But if you ask any solicitor their opinion as to the wording of the regs they will tell you the same thing that I have done.

Boo

[raphal]

If the opt out wasn't done properly then this restriction is invalid.

What do you mean by opt out was done properly. I have searched this forum for discussions on opt out.

A quote from you in this thread is as below:

There is some debate about when the opt out needs to be done. What the legislation says is that the opt out must be done "before the introduction or supply" of the worker. Lots of people say that they take this to mean that opt out is not valid unless it's done before the introduction but it could also be argued that the opt out is valid if it's done after the introduction but before the supply (eg, before you start working). It's a grey area and as far as I know it's never been tested in court.

In my case the contract document itself had a clause saying I am opting opt out. So that opt out is invalid then. ?

[Boo]

I have not seen you post a single constructive or useful thing yet. All you have done is waste your time firing another one liner shot at other posters.

PKB.

Boo

[Boo]

I am anticipating two contract offers. For one, I havn't signed any agreement, but have agreed for the contract over phone with the agency, work order and other paper work is under process.
Second one I gave a telephonic and have been asked to come for face to face interview.

I am more interested in the second contract which is a development project. The first one being support job (bug fixing). I am confident that I will secure the second contract after the interview, in which case I am in a awkward situation to say no to the first agency where I agreed (not in writing though). Appreciate any suggestions here.

What's uneasy about this for me is the fact that the first contract is with the same employee for whom I finished contracting about 3 months ago. So if I say no now (after initially agreeing), I might be shortlisted in their black list for any future opportunities.

You don't say when the interview for the second job is going to take place ? If it is in the next week and you are confident of a quick turnaround then you can fairly easily string the first agency along just by saying things like the contracts haven't arrived yet / they are in IR35 review / off to the acountant for a second opinoin etc etc etc.

Then, if you get the second job you can either tell the first agency you have decided to take another role (if you can face their consequent hissy fit) or else make a demand for contract alterations that you know will be unacceptable to them (like a big pay rise over what has been agreed / ask them for a clause indemnifying you for any legal fees if a dispute arises / etc etc - use your imagination). Or you can just do what the agencies do when the situation is reversed and they have a preferred candidate but want to keep you as a second string : don't answer calls and generally delay, obfuscate and shilly-shally until they give up.

As for the client putting you on a black list, they might do but then it is fairly unlikely that your availability slots will coincide with their demand slots in any case so meh ?

Boo

[raphal]

Did you sign the opt out for the last contract you did for that client? If the opt out wasn't done properly then this restriction is invalid. You can be sure the old agency will create a huge stink if they find out.

I'd be inclined to take the contract and keep a very low profile.

I had signed opt-out during previous contract. I am at risk if either of the agency finds it out. Old agency may take legal action. If the current agency comes to know about this, they may try to take advantage of the situation.

I think its better sort it out mentioning this ristriction to the current agency.

Thank you.

[Wanderer]

The restriction claue :
"The Service Provider and its Directors undertake that they shall not and that they shall procure that the Consultant(s) shall not enter into any agreement, whether directly or indirectly, to supply services of a similar nature to the Client or a subsidiary or associated company of the Client or to the Client’s clients, other than through the Company for a period of 12 months following the termination of the Agreement."

So if I go ahead with new contract for this client with a different agency, I might get into legal hassles.
What options do I have ?
1) Speak to client and come through the first agency which represented for the previous contract.
2) Close the current ltd company and open a new for and proceed with the new agency.

-Raphal.

Did you sign the opt out for the last contract you did for that client? If the opt out wasn't done properly then this restriction is invalid. You can be sure the old agency will create a huge stink if they find out.

I'd be inclined to take the contract and keep a very low profile.

[raphal]

Thanks for the reply. The second contract I mentioned might take some time, hence I am focusing on the first one.
Even then I am in a bit of a pickle. As I mentioned this contract is for the same client for whom I finished contracting about 3 months ago. But the agency this time is different one. And I now recall that there was a clause in the agreement with previous agency which restricts me to work for this client directly or indirectly for 12 months.

The restriction claue :
"The Service Provider and its Directors undertake that they shall not and that they shall procure that the Consultant(s) shall not enter into any agreement, whether directly or indirectly, to supply services of a similar nature to the Client or a subsidiary or associated company of the Client or to the Client’s clients, other than through the Company for a period of 12 months following the termination of the Agreement."

So if I go ahead with new contract for this client with a different agency, I might get into legal hassles.
What options do I have ?
1) Speak to client and come through the first agency which represented for the previous contract.
2) Close the current ltd company and open a new for and proceed with the new agency.

-Raphal.

[northernladuk]

Hi,
I am new to this forum and seeking suggestions/advice on my situation.
I am anticipating two contract offers. For one, I havn't signed any agreement, but have agreed for the contract over phone with the agency, work order and other paper work is under process.

Ok you are in a bit of a pickle now. Some will argue verbal agreement is binding, others will argue it isn't. Forgetting all that you have given the agent the expectation you have accepted and he will start the ball rolling. If you decline he is going to be very pissed. Not insurmountable. Just point out it was a tentative agreement but was subject to contract and now you have it you have decided not to progress. Don't take any crap from him about being sued, loss of earnings, being bound to it. He will go away after letting off steam.

Second one I gave a telephonic and have been asked to come for face to face interview.

I am more interested in the second contract which is a development project. The first one being support job (bug fixing). I am confident that I will secure the second contract after the interview, in which case I am in a awkward situation to say no to the first agency where I agreed (not in writing though). Appreciate any suggestions here.

Well you are not tied to the first one but you certainly can't keep them holding for too long. You could speak to the first agent and tell him you have accepted 'subject to contract review' which normally takes 5-7 days but anything longer than that won't wash. Even if you turn it down after that he is going to want to know what it is about the contract you didn't like. The longer you leave it the more pissed off the agent will be.

Gotta say from a personal opinion I am a bit tied on this one. Stringing the first agent on for up to two weeks in the hope this one comes off is a bit tight but I certainly wouldn't be throwing away the best of the two just on principles. You are just going to have to play this one pretty hard and shoulder the fall out if you can get contract 2. If you wait too long and contract 2 doesn't appear you could lose contract 1 in the meantime.... Tough one.

What's uneasy about this for me is the fact that the first contract is with the same employee for whom I finished contracting about 3 months ago. So if I say no now (after initially agreeing), I might be shortlisted in their black list for any future opportunities.

I wouldn't worry too much about being blacklisted. This is business, the client will be disappointed but should understand. The agent will be annoyed at you and if you have to deal with him again he may be nervous but they don't work on principles. If you can make him money he will put you forward. Don't lose sleep over it.

BTW, he is not your employee, he is your client. Pedantic but very very important point.

[BrilloPad]

I agreed over the phone that the agency may proceed further with paper work. I am yet to receive the formal agreement to sign.

Then I don't see what the issue is. Find delays in the paperwork for contract1 until you see if you get contract2. I think you are being very optimistic about contract2.

If you had accepted contract1 then I advise you to take it.