Contractor working as Ltd company - problem with employment agency Ts & Cs

[julie-contractor]

Hello everyone, I wonder if anyone has any advice. I have been offered a contract with a client via an agency. The agency terms and conditions are very heavily weighted in their direction. The specific term that I wish to have removed is that they or the client can cancel the contract without any notice and not owe me any money. The client can cancel without any notice period and the agency will not owe me any money. The client can claim my work is not suitable and cancel without any notice and give no evidence as to why the work is unsatisfactory.

 

 

I am a Ltd business but it's just me and my hubby who does the admin and I do the work. I am going to ask for these clauses to be removed but have already been advised that these are their standard terms and if we don't accept them I cant have the work.

 

 

My argument is that they are forcing us to agree to the terms under duress - ie: agree or loose out on the work. No other agency is currently recruiting for the job so I cant go to someone else to get the contract.

 

 

the terms are heavily and unfairly weighted in their favour. I have to give notice and if I don't work the notice I am liable for all their loses

 

 

They are an established million pound company and we are two man band.

 

 

This is the standard terms and we cant afford to get every contract reviewed by a lawyer.

 

 

I have suggested to my hubby that we ask for the relevant clauses to be removed and if they refuse write an email to say we are signing to accept the terms and conditions but only under duress and if any dispute occurs we will use the unfair terms act of 1977 to claim that they forced us to agree to an unfair contract.

 

 

would that be OK?

 

 

also if they say we cant have the contract if we do not sign without that caveat can we go to the client directly and ask them to agree the contract between us directly and cut out the agency altogether?

 

 

any advice very much appreciated.

[BazzaS]

Hello everyone, I wonder if anyone has any advice. I have been offered a contract with a client via an agency. The agency terms and conditions are very heavily weighted in their direction. The specific term that I wish to have removed is that they or the client can cancel the contract without any notice and not owe me any money. The client can cancel without any notice period and the agency will not owe me any money. The client can claim my work is not suitable and cancel without any notice and give no evidence as to why the work is unsatisfactory.

 

 

I am a Ltd business but it's just me and my hubby who does the admin and I do the work. I am going to ask for these clauses to be removed but have already been advised that these are their standard terms and if we don't accept them I cant have the work.

 

 

My argument is that they are forcing us to agree to the terms under duress - ie: agree or loose out on the work. No other agency is currently recruiting for the job so I cant go to someone else to get the contract.

 

 

the terms are heavily and unfairly weighted in their favour. I have to give notice and if I don't work the notice I am liable for all their loses

 

 

They are an established million pound company and we are two man band.

 

 

This is the standard terms and we cant afford to get every contract reviewed by a lawyer.

 

 

I have suggested to my hubby that we ask for the relevant clauses to be removed and if they refuse write an email to say we are signing to accept the terms and conditions but only under duress and if any dispute occurs we will use the unfair terms act of 1977 to claim that they forced us to agree to an unfair contract.

 

 

would that be OK?

 

 

also if they say we cant have the contract if we do not sign without that caveat can we go to the client directly and ask them to agree the contract between us directly and cut out the agency altogether?

 

 

any advice very much appreciated.

 

 

By discussing the terms, you are showing that you have had actual notice of them, so you can't later claim they weren't incorporated into the contract, unless they get removed from the final version.

 

I'm assuming the 'construction' of the way the clause is phrased means it is clear and covers the area they wish?

 

UCTA 1977 is often considered in the respect of 'exclusion clauses' or 'limitation of liability' clauses.

 

Your situation appears to refer instead to an "express term of contract", so S3(1) of UCTA applies, (not because you are a 'consumer' as you are a limited co., but you note they are the other's "standard terms of business")

You can claim the term is unfair, and let a court decide if it is reasonable .....

 

There is guidance in schedule 2 as to what is reasonable in terms of S6(3), S7(3) and S7(4) but note that this doesn't mean it is the guideline for what is "reasonable" under s3.

 

UCTA is about unfair terms. UCTA isn't about duress.

 

You need to separate out economic duress and UCTA.

 

Duress would make the contract voidable.

To be duress it would have to be "an illegitimate threat or pressure ". "Which left you with no practical choice" and was "a significant factor in inducing you to enter into the contract"

(Case law : Carillion Construction Ltd v Felix (UK) Ltd)

 

http://www.nadr.co.uk/articles/published/AdrLawR/Carillion%20v%20Felix%202000.pdf In particular para's 24, 25, 39 and 40.

 

 

Is there a pressure? Do you face penalties for breaching a different contract if you don't sign on the dotted line?

If there is,

a) is it illegitimate? (see Carillion ) and

B) is it a pressure inducing you into entering the contract?.

(This has to be more than : getting the contract is good for your company)

If they knew you had to go to them for "left-handed widgets" to complete another contract you were already in, and they hiked the price to "scalp you" - there is pressure to enter the contract at the higher price : they'd be acting in bad faith (another of the 'Carillion' criteria).

 

Duress has to be more than "the rough and tumble of commercial life", which is the defence I'd expect them to mount if you tried to claim duress.

 

I hope this is useful information, but I need to stress : I'm not a lawyer.

It is also information, and you shouldn't use it as advice (it might be good to help formulate questions for a professional legal adviser, though?)

 

If this is vital to your company, or might lead to you getting bogged down in litigation with a mammoth company : do you really want to rely on advice from a self-confessed non-lawyer on the Internet?

 

It may be worth walking away, or if you really can't afford that: getting advice from a qualified lawyer.

 

As for cutting out the agency : is there a clause in your current agreement with the agency where they can come after you if you cut them out?

They may have such with the client firm even if they don't have with you, so even if you are able to cut them out, you'll need to factor that in.

[steampowered]

My argument is that they are forcing us to agree to the terms under duress - ie: agree or loose out on the work. No other agency is currently recruiting for the job so I cant go to someone else to get the contract.

 

Unfortunately this is not 'duress' within the legal meaning of the word. The key point is that the agency/employer have no obligation to give you any work. They can choose the terms which they wish to offer.

 

In the law of duress, there has to be 'illegitimate' pressure. The pressure is only considered 'illegitimate' if the person in question is responsible for it. It is not the agency's fault that no other agency is recruiting for the job, hence there is no duress. Legally it is very clear that you cannot use general economic circumstances as a basis for claiming duress.

 

I have suggested to my hubby that we ask for the relevant clauses to be removed and if they refuse write an email to say we are signing to accept the terms and conditions but only under duress and if any dispute occurs we will use the unfair terms act of 1977 to claim that they forced us to agree to an unfair contract.

It is actually extremely common for people to say 'these are my standard terms, take it or leave it' and then agree to specific amendments. I agree with asking to have the relevant clause removed.

 

It would be a good idea to suggest a more reasonable replacement, such as a notice period. This will sound better from their perspective than a straight removal.

 

If your concern is really about not getting paid for work you have done, amend the clause to say they can cancel at anytime but provided you will get paid for work which has been completed. Please do check you have read the clause correctly - normally the intention would be that the employer does not have to pay for any work completed in future after the termination notice has been given, not that they wouldn't pay money for work already completed. Post up the clause here if you are unsure.

 

Unfortunately UCTA1977 won't protect you here. UCTA only really covers 'exclusion clauses' which try to limit legal liability and this is not an exclusion clause. You may be thinking of the Unfair Terms in Consumer Contracts Regulations 1999 which has more general provisions about unfair terms, but you are not protected by those regulations because you and your company will not be treated as a 'consumer'.

 

also if they say we cant have the contract if we do not sign without that caveat can we go to the client directly and ask them to agree the contract between us directly and cut out the agency altogether?

You can, provided that there is nothing in your contract with the agency (or agency T&Cs you agreed to) which restrict you from doing this. Note also that the client will probably have its own T&Cs with the agency which provide that the client has to pay for any introductions coming through the agency.

 

If you did this I imagine the agency would refuse to deal with you in future.

[julie-contractor]

thanks to you all for the info. I knew the company and about the vacancy before the agency contacted me. Not sure why the client didn't come direct to me - but they didn't sadly. I guess they will have signed the contact which I assume will restrict their ability to deal with me directly as you say. I already had them remove a clause that restricts my dealing with the company after the contract is over - again something that they are not really allowed to do but most agencies have it in the t&cs. The worry is not that they wouldn't pay for work done - this is illegal, but that they can terminate the contract without any notice period and without any reason - leaving me suddenly with no income. whereas I have to give notice to terminate and if I fail to work the notice period I am liable for all the agencies' loses (lost income from the client).

 

 

We have suggested that they amend the clause to say that the client (and they) can terminate without any notice period only if the work is unsatisfactory and reasonable evidence must be provided as to why the work to below the required standard. I am happy to be held responsible for working my notice as long as they have to play by the same rules. Seems like a fair deal to me. Also happy to be held to provide satisfactory work but there should be a reasonable requirement on the client to provide some proof of why the work is not acceptable before they just turf me out. Currently the terms state that the client can terminate without any reason and give me no notice. Also they can terminate immediately if they deem the work to be unsatisfactory and give no proof or reason as to why it is such. Basically they can end the contract without any notice period, give no reason and owe me nothing -- whereas I cannot.

 

 

I just want a deal that puts both parties on an equal footing in terms of a reasonable notice period. Guess if they wont budge I have to take the work and suck it up or pass up the contract. Guess that's contracting!