Notice Period / Contract Breach

[RH 990]

Hi there,

I am facing some difficulties regarding termination of a contract and a friend suggested I seek help here.

I signed a new contract with a digital agency 2 weeks ago. The contract's end date is 23/12/2015 and the notice period specified on the contract is 1 week.

To give a background story, the team from the agency are going to South America from today to present a series of rough work and gather more client feedback. All of last week, we've been working on preparing the sketches and the presentation, however, the Head of Department who is supposed to present this work in South America has been off sick all week. I also had a holiday planned from Friday 20th until Sunday 22nd, which I told them about when I signed the contract and they were completely okay with it.

Before I left work on Thursday, I talked to the resource manager (the person who allocates the contractor's work and makes sure they have something to do) and asked whether everything is fine and they're happy with the work. He told me everything is completely fine and the Head of Department will be back on Friday and check everything. I told them if they have any problems or questions, they can get in touch via email and I'll try to reply. I also asked him if he I will have more work to do next week (since most of my team will be away in South America) , and he said "you won't be working on that project for next week, but I will definitely put you on another project for next week until the team get back".

I got a call from my recruiting agency on Friday afternoon saying that the resource manager has contacted them saying that they want to terminate the contract immediately. I was shocked and asked them to give me a reason; the recruiting agent said "they have been unsatisfied with the work and want to stop the contract immediately". We went back and forth a couple of times because I was trying to defend my work, and in the end I thought it is not worth my time, since they are being unreasonable and told the recruiter that I am happy to end the contract and I will be expecting 1 week's worth of payment for my notice period.

He told me "Sorry, that is not how this works. You have breached the contract and in that case, we don't have to pay you for your notice period. The contract becomes 'void'". I was furious and told him that my contract definitely says I have 1 week notice period and that I demand payment for that period and he pointed me to the below clause in the contract:

""8. TERM OF THE AGREEMENT

8.1.This Agreement shall commence on 12 Nov, 2015 and end on 23 Dec, 2015 unless previously terminated by the Employment Business or the Consultancy giving the other party the period of notice specified in the schedule attached.

8.2.Notwithstanding sub-clause 8.1 of this Agreement, the Employment Business may without notice and without liability instruct the Consultancy to cease work on the Assignment at any time, where:

8.2.1. the Consultancy has committed any serious or persistent breach of any of its

8.2.2. the Client reasonably believes that the Consultancy has not observed any condition

8.2.3. for any reason the Consultancy proves unsatisfactory to the Client.

8.2.4. the Consultancy becomes insolvent, dissolved or subject to a winding up petition.

8.2.5. any member of the Consultancy’s staff is guilty of any fraud, dishonesty or serious

8.2.6. the Consultancy is unable to perform the Consultancy Services for over 2 days obligations under this Agreement; of confidentiality applicable to the Consultancy from time to time; ormisconduct"


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Note that 8.1. and 8.2. completely counter eachother. Also, the term "for any reason" sounds very ridiculous and loosely set.

Please, could you advice me on how I can proceed with this?

Kind regards,
R

[Fred Bloggs]

Put your energy into finding your next job. That one has finished.

[MrMarkyMark]

Please, could you advice me on how I can proceed with this?

Yes, forget about it. Move on.

[northernladuk]

Lots and lots of things that could be discussed here but to try and cut to the chase...

You will have a clause saying you are paid upon receipt of a signed time sheet. I. E. You get paid for work done. They could have invoked the notice and asked you not to come in which would leave you in exactly the same situation, effective instant termination. You could argue you have a notice period so they say OK send us a signed time sheet in for the week. Same end.

They've been pretty stupid try the breach route as they didn't need to.

Forget trying to argue the breach. It's your word against theirs. That will come to nothing. Some on here will say play hard and fast re notice but agents are used to this. IMO have a go if you want but this happens in contracting so be prepared to swallow it and move on.

[northernladuk]

And IMO if they are willing to put you on other projects when there are weeks you are not required you have escaped a potentially dodgy IR35 situation. I imagine that will just be the timing the iceberg as well.

[LondonManc]

Move on.

Like NLUK said, you've dodged an IR35 bullet - sounds like you were being used as a general permatemp.

[RH 990]

Thank you very much for the advice! I guess I will just forget about it.

[ASB]

Thank you very much for the advice! I guess I will just forget about it.

Harsh: You shouldn't have signed it. It gives them absolute carte blanche. It's a B2B arrangement and parties are therefore treated as equals.

If you want to pursue it, it has to be against the agency (save for very limited circumstances surrounding bad faith), you need to ascertain that the clause is unfair. (You may possibly have some success at this). Thing is to get it acknowledged you will have to get them to agree or go to court. Clearly likely pointless with the sums at stake.

You could try writing, "they said work was fine - shame no email?? - now they've gone off in a different tangent, so this is clearly bad faith. They have breached. Under 8.1 I am entitled to a week, here's the invoice".

Then when they don't pay go to small claims court and see if they defend.

[BolshieBastard]

Well it's not the first and won't be the last time someone at the client has said 'Yes, everything is honky dory' to the contractor's face knowing it's a bare faced lie and they want rid.

The joy of contracting, eh?

[psychocandy]

Yet another client stitch-up. Something changed and they decided they wanted to save some money. So make up some crap to get rid of contractor straight away.

You ain't the first and won't be the last I'm afraid.

If it was, I'd possibly pursue the one week notice. Not too much effort, few letters, maybe small claims. Might be a bit of a laugh at least and they might think ffs just pay him the week to get rid of him.

Yes I know its no work no pay but this sort of thing happens too often I think. If either party wants rid then invoke notice if you want by all means (I'll be first to defend either parties rights on this one) but this sort of thing is just bollacks way to treat people.

Imagine the fallout if you phoned agency on friday, made up some lies, and then said because of this Im not finishing now with no notice. It would not go down well. I'm sure there are contractors who would do this also but there we go.