Complicated Non Payment Issue

**rootsnall** · 26 July 2005, 10:40

Starting to get worried about this insistence on using an umbrella issue, its cropped up a bit this week ! Is this the start of something !?

I think you'll find it'll be down to you to produce signed timesheets or similar. Any reason why you haven't got those !?

**insight14** · 26 July 2005, 10:40

What makes it complicated? Check your contract -

If you are opted-out of the "Conduct of Employment Agencies and Employment Businesses Regulations 2003" then you aren't protected under these. In which case you're a bit screwed.

If your contract doesn't make mention of the Regulations then you are opted-in.
http://www.dti.gov.uk/er/agency/conduct.pdf

Have a look at regulation 12. The agency can't withhold payment for work done just because the client doesn't pay the agent. It is a contractual issue between the agent and the client.

Just make the agent aware of the regulation and if that doesn't provoke action, start sending the final warnings followed by the court order.

In one of the recent threads, Sandy provided a good letter in lawyer speak to scare the agent into paying up - track that down and use it just before a court order.

**tim123** · 26 July 2005, 10:45

If legal action is taken against the agency it has to be by the management company. You have no contract with the agency so you have nothing to enforce.

Either you have to persuade the MC to take action on your behalf, or you have to sue the MC for payment and not worry about whether they collect from the agency.

Obviously the first is the preferred method.

This 'problem' is IMHO the biggest reason for not using a management company, but it's too late for that.

Out of interest when you say "forced" to use a MC, do you mean instead of a Ltd Company?

tim

**insight14** · 26 July 2005, 11:21

Originally posted by tim123

If legal action is taken against the agency it has to be by the management company. You have no contract with the agency so you have nothing to enforce.

True. Still, I'd start chasing it with the agent personally - you'd really rather scare the money out of them than have to get ParasolIT to take them to court. If the agent realises that you know the law, it might be enough to get some action.

If you get nowhere with the agent, you're going to have to ring Parasol and see how far they are willing to go on your behalf. If it gets to that stage, please post back here and let us know how you got on. I'm sure there'd be a lot of contractors on this board who would be interested to know whether umbrella companies will "go the extra mile" for you when it get brown and sticky.

**gtullett** · 26 July 2005, 11:47

On the timesheet front, they used an automated system whereby i filled my hours in online this was approved and sent to the agency and they agency then paid off the back of that, so no timesheets.

I was told that the inland revenue had audited the whole site and that any contractor would be caught by IR35 because of this the client told the agency that only approved umbrella companies, that insisted contractors use paye be allowed hence me being forced to use one.

I have had an update and the client is coming up with some b*lltulip (excuse my language) about excessive internet access 85 hours in 4 months as to the reason they wont pay, been in this game ten years without anything like this and have very little way of disproving this now i have left.

**Mindomoo** · 26 July 2005, 11:59

Excessive internet use - 85 hours in 4 months

How do they work that one out

I have internet sessions open all day. Check them everynow and again whilt waiting for programs to execute.

Unless you are keying stuff in, how do they know how long a time you are using the net for.

As a non technical person, I am intrigued by this one as it is something I am aware of.

**gtullett** · 26 July 2005, 12:09

Thats pretty much all i can put it down to, i have my personal mail up all day which notifies me when i have new mail.

I have never abused work net access which is why this is so annoying, if i was perm i could apeal on this speak to HR etc, but as a contractor you have nothing, unless you look at it from the inland revenue perspective whereby you are the same as a perm person

**insight14** · 26 July 2005, 12:32

You get timed by the TCP sessions you open to the proxy server. Your times will vary depending on the type of content you have on the pages. If it is active content (such as advertisements, or if it checks you internet mail every 5 minutes), you will run up a large time counter.

Conversely, if your page is static (just has lots of text on it), and you don't refresh the page (thereby initating another TCP session), then you will only incur a time count equal to the proxy's TCP session limit (usually 30-90seconds). Even if you have been reading the same static page for 3 hours.

Its not an exact science, which is why it should be used as one of a number of indicators of abuse.

**insight14** · 26 July 2005, 12:39

gtullett - the client is just trying it on. Notwithstanding the fact that they are withholding payment of 150 hours (4 weeks), because of what they perceive to be non-work related internet access of 85 hours.... I mean, if we were talking about 150 hours of internet access they might at least be misguided, but logical!

Its not really your problem. You can explain to the agent why you think the client is being unreasonable (as it would appear), and if the agent and client have a good working relationship they may be able to help you. More likely the agent won't want to upset the client, so you're left going after the agent.

Goes to show, the agent is not always the bad guy, and they can get caught out too.

Complicated Non Payment Issue