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The Immoral Unfairness of Contracts October 11, 2010

Posted by mwidlake in Perceptions, Private Life.
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You can tell from the title that this is going to be a rant…

Do you remember the last time you signed a contract for a job? Did you read all the terms, conditions and clauses? How angry did it make you? If you did not read it, dig it out and do so. It will ruin your whole day.

I do a mixture of contracting and consulting to provide bread on the table and catfood in the cat bowl and I get to sign a lot of contracts. And they send me mad as so many of them have such outrageously immoral, unfair and, I strongly suspect, illegal clauses in them. But if you don’t sign, you don’t get a job.

If the contract says they can get rid of me on a week’s notice, but I have to give them a month, I insist they pick one or the other and it applies to both parties. If there is a clause saying everything I think of belongs to them then I say no – if it is based on their intelectual property or code specific to their application, then it is theirs and I will comply utterly, but if it is the sort of generic data dictionary query that all these client rely on me to use to do my job, it is mine and I want the right to use it {and give it to other people, like I gave it to you, Mr Client}. Another clause that seems to be becoming rampant in the UK contracting arena is the 40-hour working week and signing away any right to complain. I absolutley object to that as it has been proven scientifically that continuous long hours are detrimental to health. If I choose to do 40, 50 hours in a week (and I often do) it is my choice but they damned well are not going to insist on it. I also know if I do the 50 hours for too long, my productivity and quality drops – and I think we all know this is the real case.

There is often a discussion with the actual people you work with, how the contract is just “admin” and they would never treat you in the way it says they can and “just sign it and forget it as we know you will do the job and we will never use clause 17.3.2 on you”. And they probably won’t, but it makes the contract a big, fat lie at best and a potential stick to beat you with at worst.

A few years ago I decided that I had had enough of this and I now challenge the worst of these clauses and I have had some succes. I also challenge them because, just once or twice, I have had someone try and take advantage of me due to these clauses. Usually recruitment agencies, I have to say.

With small organisations I usually can agree fair and equitable terms. With larger organisations it is a fight but I can usually get some sense into the agreement. But with international corporations, it is a blank refusal. They do not need me, they can buy in someone else and they damn well ain’t going to negotiate or treat you as an equal.

I’m facing this one right now. I’m looking at the contract and the blank refusal by the faceless (and probably deeply annoyed {and overworked}) minion in Admin to even consider a single letter change to a contract. And I am thinking “well sod you and your job and your immoral and bullying contract then”. This morning I really considered walking off site and sacrificing any chance of payment to “punish” such unbending unfairness.

But I probably won’t, I’ll probably roll over and sign the abusive, vile document because I have already been on-site for a week and I like the people I work with, I like the job and I want their project to succeed. And the potential unfair aspects of the contract will probably never be a real issue. So why can’t they just be fairer and why does it make me so absolutely incandescant with rage?

*sigh*

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Comments»

1. Neil Chandler - October 11, 2010

Never start before you sign unless you’re prepared to give your expertise and time away for free. Caveat Venditor.

At one former (large) employer, we deliberately put some clauses in that no-one would generally be able to meet, for no reason than you find out who is really savvy spotting them. It also lets you terminate for breach of contact much more easily. For example, we demanded much higher professional indemnity insurance than anyone ever has (e.g. I have never met an independant who has over 2M. We asked for 10M.) We always backed-down if the causes were reasonably queried.

mwidlake - October 11, 2010

>It also lets you terminate for breach of contact much more easily
WHAT! I just knew there was a reason I did not like you Neil! And you come over as such a nice bloke as well.

I normally never start before I’ve signed, but they ground me down by that other trick of glacial progress. I can afford to sit on my backside waiting for the admin to sort out for only so long.
I’m starting to think this whole working for a living lark was a bad move.

Neil Chandler - October 11, 2010

I not that evil! More, semi-evil. quasi-evil. The Margarine of Evil. The Diet Coke of evil. Just one calorie. A little evil. Maybe.

with apologies to Austin Powers.

2. Tim Hall - October 11, 2010

Hi.

I had one that said everything I come to the company with and everything I produce for a year after I leave belongs to the company. So my website belongs to you? I don’t think so!

I manually amended the contract, striking the whole section regarding that absurd copyright claim, but leaving the reasonable ones, signed my amendments and signed at the bottom. The HR department didn’t throw it back at me. I’m not sure how it would stand up in court, but I had never signed the unamended contract so both of us had the same copy.

Even if everyone is fine with you personally, signing something that gives them leverage in the future is not a good idea. I’ve worked for two companies that have been taken over during my employment. As a result, my contract that felt like a “between friends” agreement suddenly became an agreement with a faceless giant. For the most part independants are too small to warrant all the fuss of legal action, but it’s good to protect yourself.

Cheers

Tim…

Neil Chandler - October 11, 2010

Tim,

Strike out of clauses with an initial next to it is acceptable legally. However, the company should re-type and return a corrected signed copy. If they don’t, your struck-out version should still carry enough weight in court as the company is implicitly accepting your changes by allowing you on-site and paying your company. The crossing out should be clear and unambiguous – put a ruled line through every word, not just a diagonal scribble across a paragraph.

I really must dig out the legal training course work I got a couple of years ago to refresh my knowledge. Some clauses mean the complete opposite of what you think they do. I love “Best Endevours”, which doesn’t mean “I’ll give it a bit of a go”, it means “I will resolve to the best of my ability, and to the detriment of all other aspects of my work, financial position, company and any other clients.” – The clause people are probably thinking of is “Reasonable Endevours”. Very very very different.

Intellectual Property is a mine field.

3. jarneil - October 11, 2010

Hi Martin,

Just out of curiosity do you take legal advice on signing a contract?

This aspect of contracting does make me nervous about dipping my toe into a non permie position. For someone considering contracting, what would your advice be in general? Don’t touch it with a bargepole, or only do it if you are maniacally self-reliant? Is the benefit I perceive of exposure to a far wider range of experience in anyway related to reality?

regards,

jason.

mwidlake - October 11, 2010

I investigated legal checks of my contract once but the cost was eye-watering. About 500 pounds just for a look I think. However, I was asking a general solicitor, since then I have noticed contractor sites offering a contract-reviewing service but I have never used one (or know of anyone who has). My concerns are not even about the actual legality of many of the terms (the plain uinfair ones probably won’t be illegal!), just the one-sided nature of it.

As for it putting me off contracting, well it is one of the hassles and one that personally I am finding more and more irritating. Most contractors just sign the damn things and hope, I think. Just like a lot of contractors ignore the need for relevant insurance (as Neil mentioned) or are even ignorant of the need for it. I’ve never yet been asked to prove my insurance status which makes make documents a waste of paper :-)

As for advice on contracting, that is a big topic! I might do it justice this evening, but part of why I do it is exactly the reason you mention, I get to see more problems and interesting ways of working.

Dominic Brooks - October 11, 2010

Never been asked for paperwork?
I’ve had to supply all the relevant docs the last few gigs including all the proper company formation docs, VAT reg, insurance etc. And recently I had to do this for a renewal where I didn’t need to supply the stuff originally.

Increasingly tighter regulations especially for banks, etc mean they have to know and check this stuff, I believe.

Jason – For all this sort of thing, PCG membership is quite good for discounted insurance and contract reviews (£99+VAT apparently from Accountax). I’ve also heard good things on internal chat channels about Qdos which give you three contract reviews per year if you buy their insurance package.

By far the biggest advantage to contracting, imho, is never having to do one of those self-preservation performance review thingies. Plus the false perception / comfort blanket that it’s easier to walk away from something that you’re not enjoying.

mwidlake - October 11, 2010

Oh, I get asked for the company paperwork Dom, the VAT certificate, company number certificate, references {and they even get checked more often these days) but I’ve never once been asked to prove my insurance status. I give this place a week before they ask.

I’ve only ever had my academic qualifications checked twice – 21 years ago with my first ever job and then when I worked for a scientific institute in 2001. It took me about a week to find them!

Thanks for the info on contract checks and what is good about contracting too.

4. Gary - October 11, 2010

Not contracting anymore, but when I was it was always as the ‘technical’ employee of either the agency or a separate umbrella company. It removed a lot of the insurance and accounting hassles.

I’ve seen some equally shoddy contracts from the other point of view. One contract I had, well it was initially signed up for a year, then three months in they had a change of CIO who came in and gave a “re-negotiate or you’re out” ultimatum to all contractors for a 30% rate cut. I took the rate cut, then wanted out a couple of months later when I found something different. When they started being picky about my one-month notice, I pointed out that nothing in the contract prohibited concurrent employment, mentioned anything about requiring authorization for holidays or even stipulated a minimum number of hours of work a week. I was quite free to walk straight out the door and treat it as holiday or simply as a zero-hour working week.

The agency, who had been stuck in the middle when the rate cut was forced in and who had lost at least one contractor who went direct so that the 30% “cut” was the agency’s share, was quite happy to explain to the client that they weren’t in a position to expect loyalty.


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