**termination with no notice - breach of contract**court case *help needed*

[TheFaQQer]

The Unfair Contract Terms Act 1977 (c 50) is an Act of Parliament of the United Kingdom which regulates contracts by restricting the operation and legality of some contract terms. It extends to nearly all forms of contract and one of its most important functions is limiting the applicability of disclaimers of liability. The terms extend to both actual contract terms and notice that are seen to constitute a contractual obligation.

And, from the same source...

Smith v Eric S Bush. Lord Griffith provides 4 points that may be considered... (see application in St Albans City and District Council v International Computers Ltd.).

• Equality of Bargaining Powers.
• How practical was it to obtain independent legal advice regarding the term?
• How difficult is the task being for which liability is being excluded?
• What are the practical consequences of ruling that a term is unreasonable?

Since your business had the same equality of bargaining powers, and it was practical to obtain independent legal advice regarding any of the terms, I don't think any reasonable judge would find the contract unfair.

[Wanderer]

I disagree. The agency regulations make it clear that money that is for work which has been performed by the worker cannot be withheld. In this case, the OP is looking for money for work that they did not perform.

Imagine the situation where a client dismisses a worker without notice and pays the agency for the notice period as pay in lieu of notice.Why should the agency keep the money? It's not their money - it's money that was contractually due to the worker so it should be paid to the worker (minus the agencies commission).

[TheFaQQer]

Imagine the situation where a client dismisses a worker without notice and pays the agency for the notice period as pay in lieu of notice.Why should the agency keep the money? It's not their money - it's money that was contractually due to the worker so it should be paid to the worker (minus the agencies commission).

If the payment is contractually due to the worker, then it should be paid. I don't believe that it's contractually due to the worker, however, whereas you do.

[centurian]

Imagine the situation where a client dismisses a worker without notice and pays the agency for the notice period as pay in lieu of notice.Why should the agency keep the money? It's not their money - it's money that was contractually due to the worker so it should be paid to the worker (minus the agencies commission).

As I noted several pages back, it depends upon whether the agency is an intermediary that takes a commission from your work to the end client - or your first line customer in what is a chain of contracts.

If it's the latter, then it is their money. You have to sue them for money due under your agreement with the agent. Whatever they have managed to screw out of the end client is irrelevant to your agreement with the agency - if they have worded it as such.

But opting in - specifically invalidates that argument.

[Wanderer]

But opting in - specifically invalidates that argument.

Yes, I'm talking about an opted in contract - having seen the sad stories from people who have signed away their legal rights (or have been fooled into thinking they have), I would never opt out myself.

In KittyCat's case there was no opt out.

[KittyCat]

Starting to get somewhere?

Whilst doing my research for my case I've come across another aggument;

-for the clause in the contract to terminate without notice or lieu of notice etc etc if the agency / client decide -

for that to be legal/valid it has to be accepted? i.e. by the client - the contract is the standard T&C's from the Agency with no mention of the particular client - & the Assignment Schedule where the client is named does not have anything about this clause i.e. so who says the client agrees with it - let alone acted on it?

..so - if the agency cannot show the client accepted the clause (the specific client) then how can it be valid - also as stands - there is NO information at all from the client in this case i.e. everything is the Agencies word

[craig1]

Whilst doing my research for my case I've come across another aggument;

-for the clause in the contract to terminate without notice or lieu of notice etc etc if the agency / client decide -

for that to be legal/valid it has to be accepted? i.e. by the client - the contract is the standard T&C's from the Agency with no mention of the particular client - & the Assignment Schedule where the client is named does not have anything about this clause i.e. so who says the client agrees with it - let alone acted on it?

..so - if the agency cannot show the client accepted the clause (the specific client) then how can it be valid - also as stands - there is NO information at all from the client in this case i.e. everything is the Agencies word

Your contract says that they can bin you if they consult with the client, you accepted it. They could say in there that they can bin you if they consult with the neighbour's cat and as long as you accept that then it's perfectly fair; the cat doesn't have to agree and doesn't even have to acknowledge their assent to binning you as long as the agent has talked to the cat.

The contract is between you and the agency, the client has absolutely nothing to do with it.

[KittyCat]

Your contract says that they can bin you if they consult with the client, you accepted it. They could say in there that they can bin you if they consult with the neighbour's cat and as long as you accept that then it's perfectly fair; the cat doesn't have to agree and doesn't even have to acknowledge their assent to binning you as long as the agent has talked to the cat.

The contract is between you and the agency, the client has absolutely nothing to do with it.

Rubbish - read acceptance under Contract Law & your forgetting UCTA - either way its not enforceable

- if the client has nothing to do with it as you say - then why are they mentioned in the contract & why is the agency using the clause & saying the client used it (with no proof)

- the client must be specific - otherwise like you say they can talk to fairies to use the clause if they say the fairies are clients
mmmm ... just a wild guess - but I dont think talking to Cats or Fairies to break a contract is fair!!!

<<Removed by moderator>>

[SueEllen]

Rubbish - read acceptance under Contract Law & your forgetting UCTA - either way its not enforceable

Your termination clause in itself isn't unfair.

It states that the agency and client have to "consult" i.e. have a conversation before you are terminated.

It doesn't say they have to be reasonable in their reason for terminating you. As long as they haven't broken any discrimination laws they haven't breached the contract if they talked to the client.

There was nothing stopping you getting the contract reviewed by a solicitor or even you negiogiating the contract yourself and getting the word "reasonable" put in that clause. You can do this however large the agency claim to be.

- if the client has nothing to do with it as you say - then why are they mentioned in the contract & why is the agency using the clause & saying the client used it (with no proof)

When you are in the court room then there is nothing to stop you asking for the proof again.

As long as you are polite, don't name call and in particular don't call the agency "liars" the judge will see them for what they are.

Especially if you ask them more than once in more than one way, pointing out:
a. that it's an important point in their defence.
b. that you asked them previously with particular dates and they still refuse to provide that information (It helps if you have written proof of asking them.)

- the client must be specific - otherwise like you say they can talk to fairies to use the clause if they say the fairies are clients
mmmm ... just a wild guess - but I dont think talking to Cats or Fairies to break a contract is fair!!!

BTW did you do a Data Subject Access request directly with the client to find out what personal records the client has on you as a person? This may help you to find out if the agent didn't consult with the client.

<<Removed by moderator>>

You should really not name call people on this board just because they don't agree with you.

You don't actually need us to agree with you, it's actually more help if we throw up arguments you didn't think off otherwise once you get into the court room you will be stuck if the judge or the agency's solicitor make the same points.

[centurian]

When you are in the court room then there is nothing to stop you asking for the proof again.

As long as you are polite, don't name call and in particular don't call the agency "liars" the judge will see them for what they are.

Especially if you ask them more than once in more than one way, pointing out:
a. that it's an important point in their defence.
b. that you asked them previously with particular dates and they still refuse to provide that information (It helps if you have written proof of asking them.)

All evidence must be presented to the other side well before the court hearing. If they haven't provided "proof" at that point, they would not be allowed to in court.

However, remember this is a civil case - neither side needs to "prove" anything - never mind the fact that it is impossible to prove a negative - you can only prove that did receive something, not that you do not receive something.

Kitty may well raise the fact that she has asked for evidence that they have not received the money - and can point to the fact that no such evidence has been provided. Kitty can ask them outright whether they have received the cash - and they can simply state that they have not, but it is extremely unlikely that they will need to "prove" it. The judge will then work out a) who's more likely to be correct on balance of probabilities and b) is it relevant