Contract Terms

[nstansbury]

I have already told the agency I found these terms unacceptable, so it is really now down to a punt. In this day and age, am I prepared to risk 6 weeks worth of invoiced work.

Did you opt out of the agency regs then? Opting out is NOT a good thing, this forum is littered with sad stories from people who did.

If you didn't opt-out then this contract term is illegal and the need to strike it.

As I understood - and was confirmed by the agency (?!), these only cover you in regards to being paid for unsigned timesheets.

However, these are the actual regulations: The Conduct of Employment Agencies and Employment Businesses Regulations 2003

Where they say here: http://www.legislation.gov.uk/uksi/2...lation/12/made

Prohibition on employment businesses withholding payment to work-seekers on certain grounds
12. An employment business shall not, in respect of a work-seeker whom it supplies to a hirer, withhold or threaten to withhold from the work-seeker (whether by means of the inclusion of a term in a contract with the work-seeker or otherwise) the whole or any part of any payment in respect of any work done by the work-seeker on any of the following grounds—

(a)non-receipt of payment from the hirer in respect of the supply of any service provided by the employment business to the hirer;

(b)the work-seeker’s failure to produce documentary evidence authenticated by the hirer of the fact that the work-seeker has worked during a particular period of time, provided that this provision shall not prevent the employment business from satisfying itself by other means that the work-seeker worked for the particular period in question;

(c)the work-seeker not having worked during any period other than that to which the payment relates; or

(d)any matter within the control of the employment business.

So very interesting, Opting out does appear to allow them to place this clause in contracts.

No more than it is fair for me to say to the building society that if I don't get paid then I can't be expected to pay the mortgage.

You're not getting a cut of the agency's money: the agency is contracting with you do do some work, if you do it then you should get paid. If the agency wanted your relationship to be with the client rather than with them, they could make the contract say so. OTOH if your contractual relationship is with the agency, then the agency's business is not your business.

I totally agree - this would be my position entirely, I am not contracted to the client I am contracted to the agency, yet I have my pants down to all their 3rd party risk. I like your analogy too ;-)

Work with a little managed risk is better than a bench and my prinicples intact in my personal opinion.

I think that's wise advice - principles only go so far, except as AFACT I can't quantify the risk, nor manage it!

Thank you all for your thoughts, I think it's time for coffee and decisions...


Cheers,

N

[Wanderer]

So very interesting, Opting out does appear to allow them to place this clause in contracts.

Yep, if you opt out then they can put whatever they like in the contract as it's business to business, though completely outlandish terms could potentially be challenged in court and set aside.

Moral of the story, don't opt out! There are no IR35 implications and as you can see there are very good business reasons not to opt out.

[Sockpuppet]

Maybe I'm opted in who knows.

I always thought opting out after introduction only lasted until the contract was renewed?