Agency not payinng

[Lancer2016]

Im a newbie in posting but have been reading these forums for ages

I have been in contracting since 2010 with a stint as a permie in between and back to contracting from 2015,my last contract was due to finish on the 1st week in May but I was due to apply for ILR visa on in the 3rd week in April,When I was offered a role with a very big payment processing company 6 months ago I told the agent twice via emails about by visa situation as I didnt want any grey areas and specifically told him that my visa is due before the end of contract and he said he had told the HR and they are fine

However my ILR was turned down and I have now gone for an admin review with the Home Office and the UK Govt websites clearly mention that in such case I have full legal rights to work

The Client does not accept it and wont check the 'Employer checking service' saying ah it will flag up an internal audit,now thats fine with me but the problem is the agency wont enforce the 1 week termination clause with pay on me and refusing to pay up

The contract says 1 weeks pay or 1 weeks notice ,now in may case I didnt quit they didnt give me a weeks notice just dragged their feet over a week and now say they wont pay as they cant pay anyone without a visa which is wrong as per UK law as my visa gets extended when you lodge and appeal or admin review till its outcome

What would be my best course of action? I have been very nice and professional right along but now I and the other contractors all feel they are playing for time and try not to pay

Do you think the small claims court can solve this?,btw,I have my own LTD co

[northernladuk]

There will be a term in your contract about only getting paid upon receipt of a signed timesheet. If you didn't work, you don't have a signed time sheet, you don't get paid. It's as simple as that I'm afraid. Notice periods are pretty irrelevant to contractors.

[SueEllen]

Sent the agency an invoice for the week owed by a signed for post.

Follow it up 28 days, or whatever payment terms you agreed, with a letter stating payment is over due, a copy of the invoice and give them 21 days to pay. Mention in that letter that if they don't pay you will take legal action to recover the funds and they will be liable for all costs. Again the letter should be sent for a signed for method.

After 21 days send a letter before action giving them 7 days to pay otherwise you will take legal action and they will be liable for all costs. After 7 working days* if they haven't paid go to money claim online and submit a small claims court action.

Make sure you send letters to the registered address of the agency so they cannot claimed to not to have received them. If you don't use a signed for method preferably next day delivery they will also claim not to receive the letters and not have sufficient time to deal with them.

*The rest are calendar days but working days is to give time for bank delays.

[SueEllen]

The process has lots of waits in it simply because you need to show you asked the agency to pay, you can prove it and gave them a reasonable time to do so.

If you don't, you risk the respondents challenging it in court and getting the case kicked out.

Most of my experience in taking people to small claims court has been landlords as clients and agencies tend to pay up at least by the final letter.

[stek]

AR doesn't carry section 3c rights AIUI, on what ground was ILR refused?

[SueEllen]

There will be a term in your contract about only getting paid upon receipt of a signed timesheet. If you didn't work, you don't have a signed time sheet, you don't get paid. It's as simple as that I'm afraid. Notice periods are pretty irrelevant to contractors.

Not all contracts carry that term and if the OP is opted-in anyway the term is void.

I had a client try and not sign a timesheet in the past thinking they could get away with not paying the agency and then in turn I wouldn't be paid.

Unfortunately for that client I was opted-in and could prove I did the work, so the agency threatened the client with court action if they didn't pay up as the agency had to legally pay me. The client paid up as they didn't want the bad publicity of court action.

I've also been paid notice and so have a few other contractors I've met when a client has ended a contract early.

So unless you have the OP's contract in front of you don't tell them that they have no rights to chase payment and will not be successful.

[northernladuk]

So unless you have the OP's contract in front of you don't tell them that they have no rights to chase payment and will not be successful.

Bit touchy aren't we aren't we SE. If you read what put I did refer to his contract and what the term would mean. If it's not there it won't matter, but his first step is to check. It also relates to clients not giving work. If he's worked it and he's not being paid, which I'm not 100% the situation then it won't count.so fair enough.

You shouldn't go bolding comments telling people what they can can can't say because we don't have their contracts in front of us TBH.

[ASB]

There will be a term in your contract about only getting paid upon receipt of a signed timesheet. If you didn't work, you don't have a signed time sheet, you don't get paid. It's as simple as that I'm afraid. Notice periods are pretty irrelevant to contractors.

Even if there is it is not necessarily fatal. If remedy is sought under a different clause eg notice then that clause will normally be considered independently. I had a notice clause stipulating one months notice was required. That is an enforceable specific remedy. Given notice and no work. Billed and paid. With a bit of an exchange of letters etc.

[northernladuk]

The notice and no work no pay run in parallel though? They aren't indpenedant. You can be not working during the notice period which is the same outcome. I'd guess what happened in that case and the one SE is advocating that the client bends and pays it because it's not worth going legal.

[SueEllen]

The notice and no work no pay run in parallel though? They aren't indpenedant. You can be not working during the notice period which is the same outcome. I'd guess what happened in that case and the one SE is advocating that the client bends and pays it because it's not worth going legal.

Depends on how the contract is written.

This is why I stated unless you see the contract you can't make statements like that. We have to presume that the OP read their contract and understands it.

In all my contracts whether temping, employment or contractor all the clauses that are linked refer to each other. In many of my contracting contracts some of these linked clauses actually contradict each other until I get them reviewed and amended. If the OP didn't get clauses that contradict each other amended and they concern notice, then it leaves it up to the judge to do that for them and the agency.

Unfortunately for many companies whether they are employers or agencies their HR and legal teams have a habit of extending clauses thinking by doing so they are making them more enforceable, when in fact a good lawyer especially a barrister would tell them do to the opposite so a judge cannot do the interpretation for them. There was a whole series of legal articles on this issue on the main page.