FREELA65

Beware the rogue agent

- a 'Freelance Informer' legal article from Roger Sinclair

'I started contracting in March this year. I had a choice between two contracts. The first offer was at £30ph. The agent for the second offered me £34, with £51 for overtime, and I said I'd accept. When the contract arrived to sign however, it showed a flat £30ph. I called the agent, who said this would only be for 1 month as the chap I'd be replacing would leave then and my rate would go up. I signed for 3 months. After the first month I was still being paid at a flat rate of £30ph, and every time I complained he blamed someone else and promised me it would be dealt with. When the renewal came up this was at last for £34ph and £51 for overtime. I kept calling the agent about the shortfall of about £2,500 for months 2 & 3; he asked me to send in bank statements so it could be checked with their payments, which I did. The next time I called I was told the individual I'd been dealing with had left.'

I've studied your contract. The first problem you have here is that you say you agreed one thing - a rate of £34ph, with overtime at £51 - but the contract document (which you signed) says you agreed a flat rate of £30ph.

The contract does not contain an 'entire agreement' clause such as one sometimes finds, saying eg 'this document contains the entire agreement between the parties'; it does contain a term saying that no variations can be made without the agency's written agreement. The contract was for an initial 3-month period, during which it could be terminated by the agency, but not by you.

Where parties reach an agreement, and that agreement is reduced to writing and signed, then as a matter of common sense, it is usually a fair assumption that what is written and signed is an accurate record of what the parties did in fact agree. The law takes this common sense approach a stage further, and in the interests of business certainty provides that where there is a signed document which appears on its face to contain all the contract terms, then a Court considering the contract will not even listen to evidence suggesting that the actual terms agreed were in fact different. There are exceptions to that rule, but I don't think any of them apply here.

Even if you could get over that problem, you would then have to overcome the question of credibility. Not only would you have to explain away why you agreed one thing and signed a document saying another, but you would also have to explain why, when it became clear to you that the agency was not honouring what you call the real terms, you did not put anything in writing on the subject, by way of complaint.

It seems to me that you have learned several lessons the hard way here:

Don't sign a document containing terms which contradict what you have expressly agreed. Make sure that all the terms which are important to you - especially the 'show-stoppers' - are clearly written into the document. Once you've signed the document, you must expect to be bound by all its terms - and of course you are also entitled to expect the other party to be equally bound.
Be particularly wary of signing contracts which do not give you an equal right to terminate on notice. Some agencies try to get away with this, but in my experience fewer than was the case say two years ago. Contrary to what the agent may tell you, it's not standard industry practice. If you had such a right in your contract, and if you had acted promptly as soon as you realised you weren't being paid what had been promised, then at least you could have given notice to terminate - and maybe threatening to do so would have been enough to sort the problem out.
When you deal with agencies who operate self-billing (ie you don't invoice them, they simply make a payment based on the timesheet and the agreed rate, and add VAT), then be particularly careful to check that what lands in your bank account is what you expect - and if there is any discrepancy, don't delay, put it in writing.

New contractors can be at a particular disadvantage. Some are lucky, and make the transition easily. Others can experience this kind of problem, at the hands of agents who take advantage of their inexperience, for the sake of making their own quick buck. Unless the agency has effective management systems in place for keeping the rogue individual agent in check, this kind of thing can and will happen from time to time, and can be more prone to happening with large agencies than with small ones. And if it does happen, and the contractor doesn't put a complaint in writing, then the agency won't even know about it, will they?

2^nd October 1998

I'd really appreciate your feedback on this FAQ - so mail me and tell me what you think of it, if it's been useful to you, or let me know of any specific problem you have where I may be able to help.

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