Contract Signed by MyCo but not agent

[loadsamoney]

Hi folks,

Long time lurker, first time poster - hope you're good!!

Got a situation I'd like to run by you learned ones out there, as in my 11 years in this gig I've not come across it before...well, not the last bit anyway.

Usual situation, agent sends contract which is blatantly adapted from a temp contract, insists it complies with IR35 & they wont change it. Normal, used to this one & they usually roll over at this point.

Anyway, changes made appropriately to contract & it was returned to them, signed by me on behalf of MyCo. I've not yet however received a signed copy from them & they are delaying doing so. They arranged a start for today with the client, regardless.

To my mind & others I have asked, this seems to imply that they agree to the terms transmitted & the set of terms enforceable are the last set to be transmitted by either party. Indeed, I emailed said pimp to inform them that if I didnt have a contract signed by the time I started today, I would consider this constituted agreement.

Anyone ever seen this one before? How did you handle it? Should I refuse to continue or carry on now? The client is actually very accommodating & obviously, its the client -> contractor relationship which really matters.

Ideas, suggestions, comments welcome & many thanks in advance!

[northernladuk]

Firstly completely ignore the advice on IR35 until you have had QDOS of Baur And Cotterell or similar look after it. The agent doesn't want to change it as he is opening himself up for trouble and can't be bothered getting his own legal advise so will just blag you to avoid the hassle.

Secondly do you have some thing in writing to agree the contract? Possibly the mail he sent? I believe you don't have to sign a contract in all cases. It can be implied if you start work and accepted the terms even if it is not signed. In a case where it hasn't been sign and it hasn't been started you have nothing I would guess. To be fair, even if you did sign it you have sod all as well but that is a different argument.

Problem you have I think if you get another gig while he is delaying you and you point to the fact there is no signed contract he will try pull a fast one if it suits him. Gets ugly at the point but unless he is willing to get a lawyer it is just a bun fight.

[loadsamoney]

Thanks northernlad. Seems we share the same thoughts on the pimp & agree with you re: the review. Never really had cause to need a review before this one as I've always worked off my own contract & indeed all the clients I have currently are happy with it, except this 1 awkward muppet!

In terms of agreement, rates, client etc are agreed in email, there is enough there I'd say to prove an intention to create an agreement between the parties & an agreement from pimp to start on site after they'd seen the amended (signed by me) contract. There is also the standard line I use on all emails about contracts that unless a contract exists otherwise, work shall be covered by our standard terms, with a link & that engagement implies acceptance.

As you say, pimps are pimps & you have sod all anyway, but would be nice if they could just do their goddamn job & let us do ours!

[SueEllen]

Anyone ever seen this one before? How did you handle it? Should I refuse to continue or carry on now? The client is actually very accommodating & obviously, its the client -> contractor relationship which really matters.

Ideas, suggestions, comments welcome & many thanks in advance!

Had agents not return contracts before on a couple of contracts including those that were fully IR35 compliant.

In short I wouldn't worry about it if the agent has responded quickly to all your emails until now and is too cheap to hire a lawyer.

While I would be tempted to ring their office to check they are not sick and then send another email stating this, the fact that they decided not to respond indicates:
1. They are damn lazy, think ignoring you will make you go away and can't be bothered to do anything, OR
2. They mistakingly think that if they don't sign a contract then the terms are not agreed.

[Sockpuppet]

If the amended set of contracts were the last to change hands and you've had no communication from the ageny by letting you start they have accepted the terms of that contract.

[Zippy]

If the amended set of contracts were the last to change hands and you've had no communication from the ageny by letting you start they have accepted the terms of that contract.

IMO - Sockpuppet is correct. Don't delete those emails and I hope all will be well.

[TheFaQQer]

IMO - Sockpuppet is correct. Don't delete those emails and I hope all will be well.

WSS.

On the day that you are due to start, send an email first thing stating that you are starting work, in accordance to the terms and conditions you sent them on XYZ date. Attach a copy of the contract again. Then start work.

[loadsamoney]

WSS.

On the day that you are due to start, send an email first thing stating that you are starting work, in accordance to the terms and conditions you sent them on XYZ date. Attach a copy of the contract again. Then start work.

Cheers all! Thats exactly the approach I have taken & as I'm now on site, screw 'em They would have to be utter fools to try to sod about now!

Now, to get through the first weeks of an SC gig with no access to systems or the building - those are always the fun bits! Get the feeling I'll be doing more CUK lurking...might even do some posting now I finally got around to signing up!

[Wanderer]

If the amended set of contracts were the last to change hands and you've had no communication from the ageny by letting you start they have accepted the terms of that contract.

There are a couple of crucial factors here.

1. The agency didn't sign the contract before they sent it to the contractor. To my mind, this means that they are sending it as a DRAFT for approval as part of the contractual negotiations and the contractor is free to amend it, sign it on behalf of their company and return it to the agency for approval (or rejection) by the agency.

2. Since there is no contract signed by both parties, the agency can back out of the deal at any time before the contractor starts and the contractor has no comeback (not that there probably is much comeback even if a signed contract did exist).

3. As Sockpuppet says - if the contractor starts work, then the agency have tacitly accepted the contract and they are most probably bound by the amended contract even if they didn't sign it.

[TheFaQQer]

There are a couple of crucial factors here.

1. The agency didn't sign the contract before they sent it to the contractor. To my mind, this means that they are sending it as a DRAFT for approval as part of the contractual negotiations and the contractor is free to amend it, sign it on behalf of their company and return it to the agency for approval (or rejection) by the agency.

2. Since there is no contract signed by both parties, the agency can back out of the deal at any time before the contractor starts and the contractor has no comeback (not that there probably is much comeback even if a signed contract did exist).

3. As Sockpuppet says - if the contractor starts work, then the agency have tacitly accepted the contract and they are most probably bound by the amended contract even if they didn't sign it.

Brogden v Metropolitan Railway Company set the precedent that conduct indicates acceptance of the contract.

Butler Machine Tool Co Ltd v Ex-Cell-O Corp Ltd set the precedent over the battle of the forms.

One of the few bits of my degree that I find relevant these days