Legal Query

[northernladuk]

Had the OP checked his employer contract. I believe umbrellas have clauses in to pass on liabilities from the B2B contract which would change everything.

[JustKeepSwimming]

Had the OP checked his employer contract. I believe umbrellas have clauses in to pass on liabilities from the B2B contract which would change everything.

You think it's lawful for an employer to transfer liabilities to an employee of an unknown amount from a contract, or contracts, that the employee has not seen nor has any right to see?

'If you want to work here you need to give us a signed blank cheque, good luck'.

[northernladuk]

You think it's lawful for an employer to transfer liabilities to an employee of an unknown amount from a contract, or contracts, that the employee has not seen nor has any right to see?

'If you want to work here you need to give us a signed blank cheque, good luck'.

Umbrella advised me. Lawful or not he needs to check that to see if there is another twist in the plot.

To be fair I'd be very surprised if a brolly didn't try that on. Why should they be held liable if a contractor doesn't meet his contractual obligations on behalf of the brolly? Seems fair enough to me. Remember brolly employment isn't the same as normal employment.. until ET's start popping up to prove they are and the market will be in turmoil.

Thinking on. If an employee acts in a way to create a loss for the employer isn't there a chance they'd (attempt to) sack him? It's so different from normal employment it's hard to say.

[Protagoras]

You think it's lawful for an employer to transfer liabilities to an employee of an unknown amount from a contract, or contracts, that the employee has not seen nor has any right to see?

'If you want to work here you need to give us a signed blank cheque, good luck'.

I don't think it's fair at all although this scenario arises from a deliberate breach by the employee. For that matter the whole 'umbrella employee' thing is not fair!

But it's more a case of, "please be aware that if you breach the contract we may pursue you for our losses". That's not particular to umbrella employees.

As to whether it's lawful, it's usually expensive for most people to find out, since legal representation is not cheap and few do well representing themselves. Best not to go there.

It's a reminder also that often the add-on legal protection purchased with house insurance offers some level of employee dispute cover. Or one can obtain insurance from 'contractor' insurance providers.

[Protagoras]

Remember brolly employment isn't the same as normal employment.. until ET's start popping up to prove they are and the market will be in turmoil.

+1, but the other way around!

My view is that umbrella employment == ordinary employment as the default position.
It's just that this isn't widely accepted ... yet!

Certainly, there are nuances with umbrella employees being paid on B2B terms etc (the list is so long that it would open a new discussion) but fortunately there are enough umbrella employees bringing ET claims that this gets better every month.

[JustKeepSwimming]

Umbrella advised me. Lawful or not he needs to check that to see if there is another twist in the plot.

To be fair I'd be very surprised if a brolly didn't try that on. Why should they be held liable if a contractor doesn't meet his contractual obligations on behalf of the brolly? Seems fair enough to me. Remember brolly employment isn't the same as normal employment.. until ET's start popping up to prove they are and the market will be in turmoil.

They should be held liable because they are the party to the contract that contains that risk.

Having a third party indemnity clause would render the termination clause null and void, because invoking the termination clause would trigger the indemnity clause preventing termination of the contract because a termination does not happen with outstanding obligations. An employment contract much have a termination clause or one will be implied by law. You see the issue?

[JustKeepSwimming]

But it's more a case of, "please be aware that if you breach the contract we may pursue you for our losses". That's not particular to umbrella employees.

Yes if it was a breach of a contract you're a party to. To a third party contract? No.

If someone becomes unable to work? Lets say someone was knowingly pregnant at the time of taking the role and goes on maternity. They have the legal right to take time off, but the work isn't being done so the Umbrella is now in breach of contract with the agency. The mother just isn't liable.

As to whether it's lawful, it's usually expensive for most people to find out, since legal representation is not cheap and few do well representing themselves. Best not to go there.

Sure, but no fun in that!

[woody1]

If someone becomes unable to work? Lets say someone was knowingly pregnant at the time of taking the role and goes on maternity. They have the legal right to take time off, but the work isn't being done so the Umbrella is now in breach of contract with the agency. The mother just isn't liable.

Which is why it surprises me that the Umbrella would agree to such a clause. The risk is entirely on them if the employee can't carry out the work due to ill health etc.

[northernladuk]

Which is why it surprises me that the Umbrella would agree to such a clause. The risk is entirely on them if the employee can't carry out the work due to ill health etc.

Because there is a big difference to ill health/pregnancy etc than purposely breaching and going for a better rate. Nothing wrong with protecting business interests as best they can without either breaking the law or being dispassionate. We haven't even seen the clause so I would expect it would be worded to differentiate between something normal or negligence/mercenary.

[andymalory]

Had the OP checked his employer contract. I believe umbrellas have clauses in to pass on liabilities from the B2B contract which would change everything.

They do indeed - at least every one I've ever had has. Its effectively an employment contract with back-to-back wording to try and pass on most of the responsibilities contained in the umbrella-agency contract.