Being fired as an IT Contractor

[rowley birkin qc]

ok, probably done a million times before, but here goes.

just over 3 years service with company XYZ through consultancy ABC. While at company XYZ the quality of my work was never questioned, hence numerous renewals and generally happy client. At the same time i was also working on a side project that was unconnected with the client company or the consultancy (i'm an ice-cream salesman at the weekends, or something). there was no conflict with the work company XYZ was doing, no IP implications, and while some of the work naturally occurred during office hours this did not affect the work i was doing for company XYZ. The company got wind of this and i was taken into HR (?!?!?) and told i was being terminated immediately and was not told why. My consultancy later told me gross misconduct as i was working on a side project during office hours. No problem with any of that, but i've got a months notice that i wasn't allowed to work, and i'm not allowed to invoice for it due to aforementioned gross misconduct.

question is - as a freelance member of staff, is it a given that i will be occasionally working on projects outside company XYZ work? and that any devotion clause in the companys employee handbook will be unenforceable as is it contradicts the nature of my employment status i.e. if they want devotion clauses, then i am in disguised employment and not freelance.

thanks in advance....looking forward to the abuse

[SeanT]

Were you employed by ABC, or did you have a contract with them to deliver some work?

[Lance]

sounds like you are (were) in effect an employee. So I presume a fixed term contract rather than your own LTD company?

A LTD company cannot be held down to one client so what's been done is not right if you are a LTD.
If you are actually an employee (fixed term contract being an employee for all intents and purposes) then they can do what they have done, except not pay you your notice period. If you are an employee then seek legal advice. Having been there for 3 years then you can take them to a tribunal.

If you are a LTD then you can sue your agency for breach of contract (assuming a proper contract).

[rowley birkin qc]

thanks for the responses. to clarify, my Ltd Co has a contract with XYZ consultancy, not the end client. the contract between my ltd co and XYZ consultancy states:

"The Company [my Ltd co] is engaged in the business of offering consultancy services [as described in the schedule of work] and Personnel"

there is also a clearly defined schedule of work set out by XYZ consultancy which outlines project milestones/deliverables which me/my personnel are expected to meet.

i should add that the "outside business interest" i was working on was simply a hobby. while i have an equity stake in that business now, i did not at the time when i was told to hand over my pass and leave the building

[TheCyclingProgrammer]

Were you employed by ABC, or did you have a contract with them to deliver some work?

Regardless of contract, it sounds like OP's client thought of them as and treated them like an employee. I'd be hoping HMRC never get wind of it...

OP - it doesn't matter how "unenforceable" employee terms are for independent contractors, the fact is your client can get rid of you whenever they want, contractual notice terms permitting of course. Or in this case, the end client can tell Consultancy ABC that they want you off the project and Consultancy ABC would then terminate their contract with YourCo.

IMO these are exactly the sort of contracts/projects I avoid because working for an end client through an intermediate consultancy is just asking for the end client to think of you as an employee or at best, an employee of the consultancy.

[rowley birkin qc]

absolutely, and i have no dispute with that, its part of the game. what i am disputing is whether they are in breach of contract for not allowing me to work (or invoice for) my 4 week notice period by citing gross misconduct for doing something (i believe) i am allowed to do anyway (i.e. work on a little side project)

[northernladuk]

What does your contract say. Normally there are clauses in there allowing instant termination in cases of unacceptable performance etc so if that is there yes they can..

Alternatively they just ask you not to attend site again which means you don't get paid another penny. Effective instant termination.

[TheCyclingProgrammer]

absolutely, and i have no dispute with that, its part of the game. what i am disputing is whether they are in breach of contract for not allowing me to work (or invoice for) my 4 week notice period by citing gross misconduct for doing something (i believe) i am allowed to do anyway (i.e. work on a little side project)

You're not an employee, so you cannot be "fired for gross misconduct".

You have no contractual relationship with the end client so any decision on who Consultancy ABC provides to Client XYZ is entirely between the consultancy and the end client. If the client has told the consultancy they do not want you on site, then that is out of your hands.

You do have a contract with the consultancy, however, so if your contract states that you require a 4 week notice period and you believe there has been a breach of contract, that is between you and the consultancy. However, if you have an IR35 friendly contract, you may also find that your contract stipulates that if a project comes to an end, the Consultancy is not obliged to provide you with any new work or pay you for any notice period. For all intents and purposes, the end client asking you to leave means the project has come to an end.

TLDR; check your contract, but it's not the end client's problem (and ignore their waffle about gross misconduct).

[rowley birkin qc]

ok, interesting:

- "you may also find that your contract stipulates that if a project comes to an end, the Consultancy is not obliged to provide you with any new work or pay you for any notice period"
the contract does state that but, if anything, the project had just gone up a gear. i think they would find it hard to argue that (if they even need to)

- Normally there are clauses in there allowing instant termination in cases of unacceptable performance
there is, though my performance was solid, hence being renewed half a dozen times and never having my work questioned (by anyone, ever)

- ignore the waffle on gross misconduct
agree

it seems like the summary is that as the contract did not come to an end, my performance was acceptable, and assuming that i can make a case to that effect then the consultancy are in breach of contract

[SussexSeagull]

All well and good but it wasn't a great move to let people notice you were working on side projects while they were expecting 100% of your attention.