Hi, I'll try and keep this as brief as possible as I have a habit of writing too much sometimes
My background: Professional contractor / senior developer with 17 years solid experience. I have a good reputation within the industry for being a pleasant and reliable worker, and as such am lucky enough to enjoy good contract extensions with very few gaps between roles.
On 28th September I began a new role Oxforshire. The contract itself was between Haybrook IT acting as an employment business, and my limited company. I also chose to OPT IN to The Conduct of Employment Agencies and Employment Businesses Regulations 2003 from the beginning of the process, and this is also explicitly acknowledged in the contract. I'm aware of the tradeoff between opting in and IR35 but on this occasion I was considering a move to perm next year and felt the non compete would be of benefit)
9.2. The Supplier has chosen to “opt in” of the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
I had been brought in at a senior level to ensure "high quality" and offer "project estimation" , alongside general development services. However, after just a few days it was clear that the project was being taken in the wrong direction due to extremely poor coding from an offshore team resulting in an emerging framework that was completely unsuitable and unscalable for the forthcoming requirements. I raised this strongly with some team members and managers but was met with the attitude of "It's a load of c##p but why should you care, you still get paid, just do as your told". A day later my line manger took me aside and claimed that due to his own "personal issues", he didn't have time to deal with any potential 'friction' within the project, and ultimately dismissed me there and then.
I informed the agency and asked them for an official notice of termination which then took two weeks to supply. It didn't give any reasons and when I asked them they responded with the following:
"It is our considered view that actually we don’t have to give you a specific reason as that was apparently dealt with between yourself and the client at the time of your dismissal. Our contract just says “if the client dismisses contractor for any reason including, but not limited to…” and the client HAS dismissed you. That’s all we care about. And the client is not prepared to pay a notice period, therefore we aren’t, and don’t have to because of clause 3.3.3
We are concerned about the potential loss of business caused by your dismissal from the client, and would therefore be in our right to hold back unpaid invoices as compensation for that loss which was caused directly by your actions. However, in this case, we are going to pay all unpaid invoices for work done up to the dismissal, as the client has said that they will pay us, but obviously we will not be paying the notice period as, as far as we understand, there was no notice period, dismissal was instant, and the client will not be paying us for the notice period.
We do however reserve the right to seek recompense from you if, as a result of your dismissal and actions, we lose future business from the client, and therefore suffer financial loss or loss of future profits as a result of your dismissal and actions."
They have since stated that they 'believe' the reasons to be.. poor work performance / attitude / unsuitability related, but seem unsure and continue to use phrases like "we don't care" and "we take no responsibility whatsoever for the event”.
I am now in a dispute for them for 2 week's payment in lieu of notice, but the 'get out of jail free' clause that they are citing from the aforementioned email is:
"The Agent may terminate this Agreement:
3.3.3 Without notice, if the client, at whose location the Services are being performed under this Agreement terminates its Contract with the Agent for any reason including, but not restricted to, the technical incompetence, unsuitability, or unprofessional conduct of the Supplier."
The contract schedule has the following regarding termination (and bear in mind that 'gross misconduct' has not been claimed by anyone party)
"2 weeks written notice by Supplier, 2 weeks written notice by agency.
In exceptional circumstances, the contract may be terminated by the Client for reasons of poor performance. Formal termination of the contract would only occur after prior counselling/warning had been given to the contractor and at least one week given for improvement to occur. In the case of gross misconduct no period of notice will be given and formal termination will be immediate".
Incidentally, I was not offered any opportunity for remedy or indeed substitution.
Now surely, since this was an opted in contract the suitability should have been ensured by them before introduction to their client (the hirer)? In accordance with Regulation 22(2)(b) they should also have obtained two reference, however it transpires that they didn't contract either of the two recent referees that were provided, each of whom would have offered excellent references. Their threat of withholding payment is also seemingly at odds with the Conduct Regs.
My overall questions therefore, with the 'opt in' status of the contract in mind are:
- What are the chances of me successfully pursuing the 2 weeks payment in lieu that is due (which is in excess of 5K)
- Is there a claim for damages in that official written notice from the agency took 2 whole weeks to be sent whilst my company was out of pocket?
- They are threatening to counter claim if i proceed to a claim, in that I may have damaged their relationship with the client. What are their chances of this being successful given that there has been no impact on their other contractors who still continue to work there.
Additionally (and I'm now aware that my initial promise to keep this 'brief' has now bolted from the window ) the contract includes a 6 month non compete clause, threats of withholding payment for work done if no documentary evidence (i.e. timesheets) is provided and other irregularities that contravene the Conduct Regs... would it be worthwhile contracting the EAS inspectorate?
Once again, apologies for the lengthy email but I just want to get across as many as the facts as I can so that I can hopefully glean some useful advice either way from the members of this forum. If anyone would like a DM of the contract to be able to kindly shed more light on this, I'm happy to oblige.