Dispute with agency - worth pursuing?

[Tubaman]

My basic situation is:
- Ltd company contractor, currently in contract via an agency.
- The contract includes a term which specifically says I can choose my own hours of work as long as I notify the client.
- The client has requested I work 37 hours per week which is agreeable.
- I was recently offered some part-time work directly with a former client which I needed one clear day a week to do. I therefore asked the client if I could do my 37 hours over 4 days but was refused.
- I queried the situation with the agency, and after ignoring my request, refusing to answer and trying to imtimidate me, they eventually admitted verbally (although they refuse to do so in writing) that their upstream contrat with the client states that I must work the client's normal working hours, even thought the contract they gave me said I had the choice of when to perform the work.
- Although the agency will not comment, I suspect that many of the other clauses in my contract to keep outside of IR35 are not reflected in the upstream contact also, as the client seems to be expecting more of an 'agency worker'.
- The agency refuses to negotiate to resolve the matter and suggested I call my lawyer if not satisfied. They claim to have no complaints procedure.
- As a result my inability to arrange my hours, I lost the chance to do the work for the former client.

Questions which I'd be pleased to hear an opion on:
1 - Does the agency have a legal obligation to ensure the downstream and upstream contracts do not conflict in this way?
2 - Because they did not do so, might I have a case to claim from them lost earnings due to my reasonable expectation that they would provide work according to the contract terms?
3 - Although the contract says I am responsible for all taxes/NI payments etc., my reasonable expectation was the contract would be outside IR35. As the actual work has turned out not to be, might I have an additional claim against the agency for not ensuring that the end client was aware of the terms the agency agreed with me?

I've never had to take legal action against anyone before so all a bit new to me. The agency seems to think they've done nothing wrong, but I've lost a considerable amount of income from the 2nd client beacuse I couldn't accept the extra work, and if I push the issue with the first client I've been told they will just terminate (which I can completely understand given their contract) resulting in even more lost earnings.

If there seems to be a case, any recommendations of good solicitors with experience in IT contract disputes would be welcomed.

Thanks in advance for any replies.

[SueEllen]

What do you want to achieve out of your negotiations? Work that out before wasting money and calling the lawyers in as you could easily end up using the current contract you are in.

[Tubaman]

Well, my ideal outcome would be the agency agreeing to pay my lost earnings for the work I could not undertake because of their error in not matching the upstream and downstream contracts.
My reason for asking was indeed to determine if it's worth pursuing or not, and I may well decide to let it go if it looks too expensive to resolve. It's just a shame to me an agency can get away with what seems to me like negligence and just not care about it, knowing that I probably won't do anything.

[SueEllen]

The main issue I see you having is that the contract with the client is not in fact IR35 compliant as the upper contract is different from the lower contract.

If you found that out what would you do?

It may be worth chasing if you are happy to either:
1. Pay more tax, or,
2. Terminate this current contract

However if you have a clause in your contract with the agency stating the "client can get rid of you for any reason" then you will find by fighting this you won't have either contract. The agency will pretend to you that the client doesn't want you on-site while they will tell the client that you are ill/unavailable for some reason.

Ideally before signing the contract you should have got a lawyer to review the contract then questioned the agency on various clauses, and also checked with the client on a few things i.e. you can work when you like, you can work from where you like.

There are ways of doing due diligence in checking that there is a chance the upper contract at least matches the one you are signing without p*ssing the client off. (Agents tend to get p*ssed off if you get a lawyer to look at your contracts regardless.) In fact at the interview/initial meeting you can ask the client how they work to find out if what you later may be signing with the agency bears any resemblance to what the client thinks/has agreed with the agency. You should also take a name and telephone number of a client contact just in case anything in the contract with the agency is unclear and you need to clarify it as the agency refuses to.

[northernladuk]

TL;DR but answer is no.

[malvolio]

This sounds like a test case in the making...

First, speak to a solicitor who understands contract law: if you're an IPSe member there is always the free legal helpline. Contracts should not contain clauses that cannot be delivered and there is a principle in place ("Parity of Obligation" or some such) that says chains of contracts have to be fully aligned. If your agency has deliberately given you a contract it can't honour then you have a case.

From my own experience I know that quite a few agencies give the contractor any old tulip to secure the work without worrying about what they've agreed with their client and it's about time someone made a major fuss about it especially if, as in your case, it costs you money.

Keep us posted This one could run and run.

[NotAllThere]

What was there to stop you notifying the client that you were going to do 37 hours in 4 days and taking on the extra work, and when the client moaned, explaining that your contract with the agency allows you to do this?

Except for the prospect of the client terminating your contract, of course.

[BolshieBastard]

This sounds like a test case in the making...

First, speak to a solicitor who understands contract law: if you're an IPSe member there is always the free legal helpline. Contracts should not contain clauses that cannot be delivered and there is a principle in place ("Parity of Obligation" or some such) that says chains of contracts have to be fully aligned. If your agency has deliberately given you a contract it can't honour then you have a case.

From my own experience I know that quite a few agencies give the contractor any old tulip to secure the work without worrying about what they've agreed with their client and it's about time someone made a major fuss about it especially if, as in your case, it costs you money.

Keep us posted This one could run and run.

Definitely one for PCG, oops, sorry IPSE to pick up and run with then, isnt it?

As for the OP, unless he \ she has deep pockets or a strong nerve, they will not get far with this without it going legal.

[Tubaman]

What was there to stop you notifying the client that you were going to do 37 hours in 4 days and taking on the extra work, and when the client moaned, explaining that your contract with the agency allows you to do this?

Except for the prospect of the client terminating your contract, of course.

Indeed I did query the matter with both the client and the agency as soon as I got the initial refusal, and I explained to the client what my contract said, and that I was only trying to find hours to suit everyone within the contractual agreement. I was told though that their decision stood (i.e. must work 5 days a week), and advised that pressing the matter would result in termination.

[Tubaman]

Thanks everyone for the helpful advice.

I am indeed an IPSE member, and I did try contacting their legal helpline to get an opinion. Unfortunately the chap I spoke to seemed very reluctant to give me any opinion as to whether the matter could be pursued, or whehter the agency were in fact at fault or not, and he just suggested I should contact a solicitor to get an opionion. Maybe I just got the wrong person (it was a Friday aftenoon), so maybe I'll try again this week and see if I can get any further.