Eaglecliff & Shell - Mandatory 3 week holiday

[jmo21]

Shell consider us to be contractors who fall outside of IR35. By making this decision, they are treating us as if we are inside IR35.

They are paying their permanent staff for this mandatory holiday.

They are treating you exactly the opposite of their permie employees then.

Normally, in the type of contracts we work, there IS a clause about “no work, no pay”. That is absolutely normal. It is a good thing from an ir35 point of view as it shows we are different from the employees.

IF your contract does not have that clause, you MAY be onto something, but then you may be in danger of being caught by ir35.

[mcltd]

If I choose not to work, then, no, they should not have to pay me.

They are treating you exactly the opposite of their permie employees then.

Normally, in the type of contracts we work, there IS a clause about “no work, no pay”. That is absolutely normal. It is a good thing from an ir35 point of view as it shows we are different from the employees.

IF your contract does not have that clause, you MAY be onto something, but then you may be in danger of being caught by ir35.

No work, no pay is at odds with a contract that stipulates services must be provided by my company Monday to Friday during normal working hours.

If I choose not to work, then, no, they should not have to pay me.

If they book my company for a period of time (which they did), then Shell and Eaglecliff are liable for the entire period.

period.

[mcltd]

Your article proves my point! if the client fails to provide work then the client is

... I can't think how to put it any more simply to you. I've linked SDC and you are wrong so that's out of the way. I've told you how our contract works. I've shown an example where the converse benefits you for holidays (but you think it's different for some reason).
You are in a very well known situation that happens at many many clients and will happen to you year in year out as a contractor.

And just to end the thread, here is an article asking EXACTLY your question answered by a well known contractor legal eagle.

[ ]Contractor Doctor: Can my client force me to work fewer hours than my contract says?[/url]

I'm sure you will jump on the few comments that it could be breach but don't forget if you want to claim breach you have have put yourself inside IR35 which will mean you will have to pay all the tax back. I'm almost certain the contract will be worded to be outside so be woolly enough as described. But you won't be told.

Did you have your contract checked for IR35 before you started by the way?

Telling someone when and for how long they can take holidays IS CONTROL

Your article proves my point:

"Roger Sinclair of contractor specialist law firm Egos, whether this is a breach of contract is down to what was agreed during the contract negotiations and what appears in the small print."

Then it is likely that not only will the contractor be under the obligations to work for the periods specified, but also the client will have a corresponding contractual obligation to provide work for the contractor for the periods specified, and to pay the contractor for that work.

“Assuming the contractor makes him/herself available and willing to work by turning up at the client’s site every day,” continues Sinclair, “then the contractor is not in breach of contract, but if the client fails to provide work then the client is in breach of contract.”

[jmo21]

No work, no pay is at odds with a contract that stipulates services must be provided by my company Monday to Friday during normal working hours.

If I choose not to work, then, no, they should not have to pay me.

If they book my company for a period of time (which they did), then Shell and Eaglecliff are liable for the entire period.

period.

They didn’t, regardless of you stating “period”.

From your OP, the agent says this:

This is standard procedure for any contractor and the contract states a Start Date and an End Date; it does not guarantee that every day within these days can be workable.[/I]

That’s the important part I’m afraid.

And as others have said, quoting gov.uk stuff about “fixed term contracts” which are nothing to do with b2b contracts, suggests you really don’t understand the type of contract you have.

I applaud you for having multiple people on site through your company, but don’t go ruining a client relationship by getting this so wrong. (Hint: multiple people are telling you you are wrong, and have pointed out various misunderstandings. You might not like it, but there you go)

[jmo21]

Telling someone when and for how long they can take holidays IS CONTROL

Your article proves my point:

"Roger Sinclair of contractor specialist law firm Egos, whether this is a breach of contract is down to what was agreed during the contract negotiations and what appears in the small print."

Then it is likely that not only will the contractor be under the obligations to work for the periods specified, but also the client will have a corresponding contractual obligation to provide work for the contractor for the periods specified, and to pay the contractor for that work.

“Assuming the contractor makes him/herself available and willing to work by turning up at the client’s site every day,” continues Sinclair, “then the contractor is not in breach of contract, but if the client fails to provide work then the client is in breach of contract.”

And does the contract state:

“Days to be worked every week,”

The agent quote suggests it doesn’t.

[mcltd]

you are so desperate to be right

They didn’t, regardless of you stating “period”.

From your OP, the agent says this:


That’s the important part I’m afraid.

And as others have said, quoting gov.uk stuff about “fixed term contracts” which are nothing to do with b2b contracts, suggests you really don’t understand the type of contract you have.

I applaud you for having multiple people on site through your company, but don’t go ruining a client relationship by getting this so wrong. (Hint: multiple people are telling you you are wrong, and have pointed out various misunderstandings. You might not like it, but there you go)

You are so desperate to try to be right that you are making gross assumptions about what my contract actually says.

Just because I didn't outline every item in my contract does not mean it is not there.

Try asking questions, next time, as opposed to making assumptions


Hours, days and weeks specified

If the contractor has a contract that clearly states the:

Start date and end date
The rate by hour
Hours to be worked per day
Days to be worked every week,

Then it is likely that not only will the contractor be under the obligations to work for the periods specified, but also the client will have a corresponding contractual obligation to provide work for the contractor for the periods specified, and to pay the contractor for that work.

“Assuming the contractor makes him/herself available and willing to work by turning up at the client’s site every day,” continues Sinclair, “then the contractor is not in breach of contract, but if the client fails to provide work then the client is in breach of contract.”

Or, as Sinclair points out, if there is an agency in the loop, then it would be the agency that is in breach of contract as they have the contractual relationship with the contractor’s limited company or umbrella company, and therefore an implied obligation to make work available for the period – and to pay in any event.

[mcltd]

you are so desperate to be right

And does the contract state:

“Days to be worked every week,”

The agent quote suggests it doesn’t.

you are wrong.

[northernladuk]

1.) telling someone when and for how long they can take holidays IS CONTROL

It's control over you COMPANY.. not you. Your company can't send anyone in. Sometimes you are you as a person and sometimes it's you as a company. When asking you not to come in they are exercising the control allowed within the contract. SDC is about control over the worker. Different things.

I've just proved it's not control, i've even copied the text out of an established article and gone through it for you...

I've also proved it to you by linking an article answered by a lawyer...

2.) Your article proves my point: "Roger Sinclair of contractor specialist law firm Egos, whether this is a breach of contract is down to what was agreed during the contract negotiations and what appears in the small print."

I knew you'd do that LOL...

So yes he said it but a properly worded OUTSIDE IR35 contract will not contain these. It will fail an IR35 test so effectively putting you inside.
So you are putting yourself inside IR35 by having a contract that's inside and then insisting the client pay you when there is no work... like a permie...so working practices are inside... BUT you win you control argument (which you don't but anyway).
Whaaooo buddy!!!! What a win. Way to go you. Now off you toddle to back pay the taxes because you are now inside and go hire a lot of expensive lawyers to get the money you are owed... but hang on... You've be binned on the spot, which IS in your contract and you end up with no gig, and an very long unpaid holiday on the bench.

I do hope to god you've not spoken to other contractors about this on site... :

[mcltd]

you are confused northern lad

It's control over you COMPANY.. not you. Your company can't send anyone in. Sometimes you are you as a person and sometimes it's you as a company. When asking you not to come in they are exercising the control allowed within the contract. SDC is about control over the worker. Different things.

What a moron. I do hope to god you've not spoken to other contractors about this on site... :

You are rambling now. You should only comment on issues you understand.

I could post the legal advice I have received on this issue, but I won't. You are angry because you are wrong.

[northernladuk]

Everyone... everyone.. I think we can see what we've done wrong here. We've given our advice based on about, from the posters I see, about 200 years worth of contract...

But that's not what he wanted... So let's scrub everything and start again.

Can Shell legally decide to cancel certain days in a fixed term contract?

No they can't. It's breach so it's time to sue them. Good luck.

HTH