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

[KittyCat]

Breach of Contract Court Case

Prob need to fill in some blank
This happened over a year ago & has taken this long to get to court
Opt in/out is not relevant as it is my Ltd Co contract with the Agency (not contractor that relationship is my Co & me)
The assignment schedule states notice 4 wks by both my Co & themselves
The contract states that they can terminate my contract in consultation with the client - however they state the contract is not 3 way with the client - it is this which I feel does not fit with Unfair Contract Terms Actthey also refuse to supply any proof that they were not paid by the client or that notice was'nt given & said I cannot contact the client - the witness statement from the agency has given an email from the client from a graduate trainee who screwed up the project - this person was not my manager, was not in my team, or in the same building or even the same town! I only met the person of 3 occasions as I assisted in the clean-up of the mess - to which I had several emails praising my efforts - I went to India to sort it out & worked 12 hour days - I had been there 4.5 mths & only had 6wks left of my contract. When escalated to the director of the agency I was told 'your not the first & wont be the last - it was probably hoped it would go away as a lot give up - I get it you want your money' & 'these companies use agencies like us as a buffer to get away with these practices/behaviour & we have to pick up the pieces' - just as further background the Client in question has at least 5 employee tribunals happening with permanent staff! I am wholley confident that there is not one shred of any dissatisfaction with my work/performance that can be shown ..the legal advice I initially received was free from a London Lawyer which gave me enough to pursue, I then have avoided costs but now need in Court - although their soliicitor was a right numpty - finally I have another contract, top finance Co, better rate,
if no-one has gone to court about this before - is'nt it time someone did? otherwise any contract is worthless for the contractor?

[craig1]

Prob need to fill in some blank
This happened over a year ago & has taken this long to get to court
Opt in/out is not relevant as it is my Ltd Co contract with the Agency (not contractor that relationship is my Co & me)
The assignment schedule states notice 4 wks by both my Co & themselves
The contract states that they can terminate my contract in consultation with the client - however they state the contract is not 3 way with the client - it is this which I feel does not fit with Unfair Contract Terms Actthey also refuse to supply any proof that they were not paid by the client or that notice was'nt given & said I cannot contact the client - the witness statement from the agency has given an email from the client from a graduate trainee who screwed up the project - this person was not my manager, was not in my team, or in the same building or even the same town! I only met the person of 3 occasions as I assisted in the clean-up of the mess - to which I had several emails praising my efforts - I went to India to sort it out & worked 12 hour days - I had been there 4.5 mths & only had 6wks left of my contract. When escalated to the director of the agency I was told 'your not the first & wont be the last - it was probably hoped it would go away as a lot give up - I get it you want your money' & 'these companies use agencies like us as a buffer to get away with these practices/behaviour & we have to pick up the pieces' - just as further background the Client in question has at least 5 employee tribunals happening with permanent staff! I am wholley confident that there is not one shred of any dissatisfaction with my work/performance that can be shown ..the legal advice I initially received was free from a London Lawyer which gave me enough to pursue, I then have avoided costs but now need in Court - although their soliicitor was a right numpty - finally I have another contract, top finance Co, better rate,
if no-one has gone to court about this before - is'nt it time someone did? otherwise any contract is worthless for the contractor?

OK, I'll try again with you... Please note, I am not a lawyer, I would get insulted if you called me one. The text below is from my many, many years of contracting and doing all my own negotiating with hard-nosed companies since the 1990s; it is gained through hard experience that you may or may not want to follow. Get your own paid-for, competent advice from a solicitor that specialises in B2B contracts or is a specialist contractor industry lawyer.

1. You need to learn about opting out of the agency regs. Opting-out ONLY applies to limited company contractors. Seriously.

2. "The contract states that they can terminate my contract in consultation with the client" Everything after that is completely irrelevant. If the client says they don't want you any more, the agency says "OK", consultation over, you're gone. Even if it's as simple as they don't like how you make tea, it's irrelevant, the consultation is over. Sounds tough but it's what almost every contractor has in their contract in some way or another.

3. Unfair Contract Terms Act is essentially irrelevant for you. If you were approaching this as an individual then UCTA can be invoked but you're not, you're going through as a B2B relationship and the law makes an assumption that businesses contract with each other as equals. You didn't have to accept the contract with those terms, you could have negotiated or walked. Your case is undermined by those of us who contract and get every single contract negotiated in some way or another; I can't think of any contract for over 10 years that I haven't had at least one line changed.

You are approaching this as an employee or individual. You're not. YOUR company negotiated on an open B2B supplier/client relationship to provide services. You provided those services. You have the right to sue your own company as an individual but you as an individual have no rights at all to go for the agency.

Seriously. Take a step back and get proper legal advice from someone who understands that it was your company contracting, not you.

[centurian]

I'm shocked that people think contracting means you have NO RIGHTS!

That's because you were being paid significant compensation not to have any rights.

Most contractors don't want any rights - because rights and high paid gigs are inversely proportional. The more of one - the less of another. If contractors had rights, clients would never pay you so much.

And that's why no-one on here will help you to any substantive degree. Because if you win, that client may never take on another contractor again. Better to get an agency temp and pay them half the rate.

[KittyCat]

Appreciate what your saying & your experience but cannot see anywhere where UCTA would not apply - anyone can draw up a contract & get someone to sign - does'nt make it legal! Also in the contract it actually states that if any term is found to be 'illegal / unethical' they will abide by the law? i.e. a get out clause for unreasonable terms - also as it is a B2B breach - my argument is there was no discussion / consultation etc - my company could have supplied a different contractor - the 4 weeks notice is from the agency to my Ltd company - not to the contractor - it states;
Notice to Agency from Supplier - 4 weeks
Notice from Agency to Supplier - 4 weeks

Its got nothing to do with the contractor? I did'nt opt in/out of anything either .. just a final point the assignment schedule states heavily against 'employee' status i.e. the level of control over the contractor - getting back to the nitty gritty of the matter they blamed someone for a project who was not even working there? The judge stated she could not understand why the agency thought there was no case to answer as clearly there was - she was'nt impressed with the waffling & even though they stated the clause I stated the assignment that was agreed - the UCTA applies to all contracts - I cannot see how a contract between 2 parties can be terminated by an external party that is not subject to the contract - I have this in writing from the agency that it rests solely with them - so its nothing to do with the client but then they can use the client as evidence? I ve come this far the costs have been minimal I've also requested meetings with agency/client, court mediation / arbitration etc which the agency rejected - I cannot see - even if I lose - how they can be awarded costs - they refused to give me their complaints procedure & have gone against their own candidate charter & ethics committee - they also dont know the full facts from the client .. & it showed ..their whole argument is relying on a dodgy 'we can do what we like' clause & no back-up from the client as I said I would bring the client into it if I can..& they def dont want that?

[KittyCat]

To Centurion

So why have the AWR been brought in then?

I am not being highly compensated for 'No Rights' - I'm being compensated for skills that are contracted - i.e. contracted - it is a contract? I accept the no holiday / sick pay / pension blah blah but the contract I accept I expect to be honoured? I cant believe people feel because you are earning more than a permy you have no rights? Actually we are not earning more than permies if you add up all the benefits - hence the AWR - my understanding is your being paid for services & in my game there is'nt that much difference to the permies!

[TheFaQQer]

I find it very difficult to read without some kind of line breaks, it must be said.

Appreciate what your saying & your experience but cannot see anywhere where UCTA would not apply - anyone can draw up a contract & get someone to sign - does'nt make it legal!

Unfair Contract Terms Act (1977) only applies to business to business where one party is dealing "on the other's written standard terms of business."

Did the agency have any standard terms and conditions, which formed your contract? I'd argue that although an agency might have a normal set of contract terms, that doesn't constitute that you were dealing on their written standard terms of business.

Also in the contract it actually states that if any term is found to be 'illegal / unethical' they will abide by the law?

I find that astounding. Who determines whether a clause is unethical? Even so, it's meaningless - if a clause is illegal, then the whole contract isn't valid. If the clause is unethical, then they will abide by the law, which is also meaningless.

i.e. a get out clause for unreasonable terms - also as it is a B2B breach - my argument is there was no discussion / consultation etc - my company could have supplied a different contractor - the 4 weeks notice is from the agency to my Ltd company - not to the contractor - it states;
Notice to Agency from Supplier - 4 weeks
Notice from Agency to Supplier - 4 weeks

Its got nothing to do with the contractor?

The client wasn't happy with the services that your company were providing. Therefore, they terminated the contract. Maybe they could have offered you the chance to find a replacement, but they didn't have to - they had the right to terminate the contract, so they terminated the contract.

I did'nt opt in/out of anything either

Oh.

.. just a final point the assignment schedule states heavily against 'employee' status i.e. the level of control over the contractor - getting back to the nitty gritty of the matter they blamed someone for a project who was not even working there?

That's a shame. That's life, Jim - sometimes the innocent will be punished.

The judge stated she could not understand why the agency thought there was no case to answer as clearly there was - she was'nt impressed with the waffling & even though they stated the clause I stated the assignment that was agreed - the UCTA applies to all contracts -

As above, UCTA only gives B2B rights if you were engaged on the standard terms of business, so that's not correct. If the judge did not realize this, then she is wrong in a point of law and the clerk should have advised her accordingly.

I cannot see how a contract between 2 parties can be terminated by an external party that is not subject to the contract - I have this in writing from the agency that it rests solely with them - so its nothing to do with the client but then they can use the client as evidence?

Not sure what your point it here. Client says that they are terminating the contract with the agency because they aren't happy. Are you saying that you think the agency should keep your company engaged - if so, to do what? Since that's a ridiculous opinion, then the agency will terminate your contract because they, in turn, are not happy with the performance of your company. They are not happy because their client is not happy.

I ve come this far the costs have been minimal I've also requested meetings with agency/client, court mediation / arbitration etc which the agency rejected - I cannot see - even if I lose - how they can be awarded costs - they refused to give me their complaints procedure

How many of your company policies have you given out to people you engage with? Why should the agency disclose an internal commercially sensitive document with an unrelated third party? YOU ARE NOT AN EMPLOYEE, so why would they give you their complaints procedure???

If this is seen as a vexatious litigation, then I'm reasonably sure that the judge could award costs as they see fit.

& have gone against their own candidate charter & ethics committee - they also dont know the full facts from the client ..

They don't need to know the facts from the client. They don't need to know anything from the client. All they need to know is that the client is not happy, and therefore they are terminating the contract in line with the contract between the client and the agency.

Actually, scratch that. They don't need to know anything from the client - if the agency has a termination clause in the contract, they can exercise it. It's nothing to do with the client in point of fact, because they are not a party to the contract between your company and the agency.

& it showed ..their whole argument is relying on a dodgy 'we can do what we like' clause

No, their defence is the perfectly valid termination clause. They don't need anything from the client.

& no back-up from the client as I said I would bring the client into it if I can..& they def dont want that?

Nor do you. Nor does the client.

Unless you want the reputation of being the person who tried to pull their client into a legal fight with absolutely no merit, thereby wasting the client's time and money for absolutely no purpose.

So, if you never want to work again in this field, go ahead and try to pull the client into it.

[TheFaQQer]

so why have the awr been brought in then?

I am not being highly compensated for 'no rights' - i'm being compensated for skills that are contracted - i.e. Contracted - it is a contract? I accept the no holiday / sick pay / pension blah blah but the contract i accept i expect to be honoured? I cant believe people feel because you are earning more than a permy you have no rights?

For the love of God - if there is a termination clause in the contract which gives the agency the right to terminate with no notice, then the contract is being honoured.

[TheFaQQer]

A standard term is unfair if it creates a significant imbalance in the parties' rights and obligations under the contract, to the detriment of the consumer, contrary to the requirement of good faith.

Ref: OFT

In general, businesses are assumed to be free to enter into whatever contracts they agree between themselves - so you should make sure you're happy with the contracts you agree with other businesses.

Ref: Business Link

I don't think that your situation is going to cut it.

[craig1]

Appreciate what your saying & your experience but cannot see anywhere where UCTA would not apply - anyone can draw up a contract & get someone to sign - does'nt make it legal! Also in the contract it actually states that if any term is found to be 'illegal / unethical' they will abide by the law? i.e. a get out clause for unreasonable terms - also as it is a B2B breach - my argument is there was no discussion / consultation etc - my company could have supplied a different contractor - the 4 weeks notice is from the agency to my Ltd company - not to the contractor - it states;
Notice to Agency from Supplier - 4 weeks
Notice from Agency to Supplier - 4 weeks

Its got nothing to do with the contractor? I did'nt opt in/out of anything either .. just a final point the assignment schedule states heavily against 'employee' status i.e. the level of control over the contractor - getting back to the nitty gritty of the matter they blamed someone for a project who was not even working there? The judge stated she could not understand why the agency thought there was no case to answer as clearly there was - she was'nt impressed with the waffling & even though they stated the clause I stated the assignment that was agreed - the UCTA applies to all contracts - I cannot see how a contract between 2 parties can be terminated by an external party that is not subject to the contract - I have this in writing from the agency that it rests solely with them - so its nothing to do with the client but then they can use the client as evidence? I ve come this far the costs have been minimal I've also requested meetings with agency/client, court mediation / arbitration etc which the agency rejected - I cannot see - even if I lose - how they can be awarded costs - they refused to give me their complaints procedure & have gone against their own candidate charter & ethics committee - they also dont know the full facts from the client .. & it showed ..their whole argument is relying on a dodgy 'we can do what we like' clause & no back-up from the client as I said I would bring the client into it if I can..& they def dont want that?

OK, here's a link to BusinessLink on UCTA and businesses. As long as they're not trying to exclude the items listed there, companies can agree to anything in a contract. You're assumed to be contracting as equals and if you haven't spotted something seriously negative to you then the courts will assume that you've factored that into the costs you've quoted. For example, I had a contract in 2005 where the client insisted on £20m professional indemnity cover along with a 2 year run-off due to the size and complexity of the project, this cost me a lot of money to secure and I claimed the cost back from the client in the contract through negotiation; if I'd simply signed it then it's my problem and I'd have to pay out of my company's own reserves.

If you really want to get into the details of the UCTA, have a read here. Note that the vast majority of protections in there assume you're "Dealing as a consumer", i.e. not you.

Notice is utterly irrelevant if you have a clause that says that they can get rid of you instantly through "consultation" with the client. You signed that freely. A court will assume you'd factored that into your rate unless you can prove some fraudulent intent or deception on their part. You did get the contract in advance to see and sign, didn't you?

I forgot to cover the tri-party part of your last point, I was on the train at the time! The agent's contract is with the client, the client has no interest in contracting with you. Upstream contracts are often referred in sub-contracted bits of work, for example a builder subbing some work out won't want to keep the subbie if the main contract is cancelled, he'll have a clause saying that he's entitled to cancel the contract in this situation. This is what happened to you: The end client no longer wanted you, their contract with the agency gave them the right to terminate instantly, the agency then terminated your company's assignment instantly using the contractual terms you agreed to. Ethically abysmal but 100% legal.

Opting out or in is highly important and takes up a lot of the time of this forum and those contracting through limited liability companies. It does impact you if you're opted out (note the semantics, you can't opt in). Have a quick search through these forums for how many threads there are on this specific subject. You contract through your company and this is what the opt-out relates to, if you didn't go through a company then you'd be going through an umbrella or the agency's PAYE system (if they had one), neither of those routes have the option to opt-out and are 100% caught and protected by it.

Everything else about your post is not relevant to your case and I'd be shocked silly if you won in a court based on the facts you've posted here.

[KittyCat]

Reply to Moldovio

Read that article - but it does not apply in this case - I can understand if there is no work - but this is not the case - I was told by the agency the client has replaced with another contractor - the basis of the termination that I was responsible for a certain project - I have in black & white that I was'nt & it could never be proved I was? its obvious what occurred - blame the contractor .. as the ones who really screwed it up necks were on the line - I think each case should be dealt with on the facts not just this sweeping 'well thats contracting' it isn't! Most businesses are ethical .. either way I dont think I can lose cos at least then contractors will know where we stand if a precedence is set .. either way.