Substitution and One weeks termination

**Sausage Surprise** · 28 September 2012, 08:56

That's what contracting is all about. If you don't like it go permie.

**cojak** · 28 September 2012, 08:59

Now don't take this the wrong way but - what does your contract say about RoS?

**northernladuk** · 28 September 2012, 09:05

I am still convinced this is subcontracting not substitution as I am sure you contract says you must introduce the substitute to the client but anyway.... Doing anything with clients data and solutions that they don't know about is a bad idea period. Helpful or not this is a customers information and not to be used as I see fit. First and foremost are confidentiality trust and respect for your client. Being helpful comes a poor second I am afraid.

Notice period is near on irrelevant for us. You will have a Mutuality of Obligation that says they are not under obligation to offer you work so you don't get paid. You could have a 10 year notice period but if they give you no work it is the same as immediate termination anyway. It also sounds like there is some misconduct in their eyes so immediate termination can be used.

I can imagine it smarts like bloody hell, but the only option I can see is get your contract back. The notice period thing is dead in the water.

Notice is for permies. If you get it lovely, if you don't that is life. That is how I see it. Remember it is a double edged sword though

**Willapp** · 28 September 2012, 13:28

Sounds to me like the main issue here is communication and not being up-front with the client about your intended actions. When you first became aware of the childcare issues, first thing should have been a conversation with the client and discuss how you can work around it via the use of a substitute - get their approval.

As for the 1 missed phone call that just sounds like it was thrown in as extra justification for the termination, I think it was the unauthorised substitution/subcontracting that caused the problem - as NLUK said, you've discussed confidential client details with an 'unknown' third party without their approval. (Even if they know the contractor, he still wasn't authorised to work with/for you).

As for the notice period, as others have said this is just contracting, it hurts when it happens but there is nothing you can do about it. Legally there will be plenty of ways they can justify their decision so the chances of you forcing an extra cash out of them are zero, so the only thing to do is take it on the chin and move on.

**northernladuk** · 28 September 2012, 13:34

Originally posted by Willapp View Post

Sounds to me like the main issue here is communication and not being up-front with the client about your intended actions. When you first became aware of the childcare issues, first thing should have been a conversation with the client and discuss how you can work around it via the use of a substitute - get their approval.

As for the 1 missed phone call that just sounds like it was thrown in as extra justification for the termination, I think it was the unauthorised substitution/subcontracting that caused the problem - as NLUK said, you've discussed confidential client details with an 'unknown' third party without their approval. (Even if they know the contractor, he still wasn't authorised to work with/for you).

As for the notice period, as others have said this is just contracting, it hurts when it happens but there is nothing you can do about it. Legally there will be plenty of ways they can justify their decision so the chances of you forcing an extra cash out of them are zero, so the only thing to do is take it on the chin and move on.

Good post Willapp.

**Incognito** · 28 September 2012, 16:12

Originally posted by northernladuk View Post

Notice period is near on irrelevant for us. You will have a Mutuality of Obligation that says they are not under obligation to offer you work so you don't get paid. You could have a 10 year notice period but if they give you no work it is the same as immediate termination anyway.

Your understanding on MOO is wrong. MOO does not mean that you can turn up the next day and not be guaranteed any work. You have signed a contract, if that contract is for 30 days then you will have to provide 30 days effort and they must accept 30 days effort. MOO means that at the end of that 30 days the other party has no obligation to provide you any more work.

That is why you have a notice period inserted in your contract, if either party did want to end the contract early they have a way of doing so.

Read here and here for more details.

Originally posted by northernladuk View Post

It also sounds like there is some misconduct in their eyes so immediate termination can be used.

That is what they will most likely argue. To the OP, you may have a claim for breach of contract, but I can't comment further without knowing your particular details. It may be worth speaking to a solicitor for an hour and getting his advice on the strength of your claim.

**captainham** · 28 September 2012, 16:25

Originally posted by Incognito View Post

Your understanding on MOO is wrong. MOO does not mean that you can turn up the next day and not be guaranteed any work. You have signed a contract, if that contract is for 30 days then you will have to provide 30 days effort and they must accept 30 days effort. MOO means that at the end of that 30 days the other party has no obligation to provide you any more work.

That is why you have a notice period inserted in your contract, if either party did want to end the contract early they have a way of doing so.

Not sure I agree with that (but happy to be corrected

).

The whole point of MOO is that work doesn't have to be offered; a notice period just says "we are ending the contract" but if there is no work to do during that notice period, then it's effectively an immediate notice period.

I read your posts but missed anything that explained this one way or the other. I have just found this one:

PCG link

"The length of notice period should not be seen as an indicator of mutuality of obligations. Once notice has been given and served and the engagement has ended, there can be no mutuality of obligations. Mutuality is created within the engagement itself and so you could have an engagement where there was no right of the contractor to terminate and must see through the engagement period to conclusion, but if there is no obligation on the engager to offer work during the contract period and/or the contractor has the right to refuse to accept work that is offered during the contract period, then there would be no mutuality of obligations and the notice period would be irrelevant."

Isn't this confirming the point that notice periods are effectively irrelevant?

**Incognito** · 28 September 2012, 16:26

Compare how your contract looks to the contract that these chaps had:

Following the decision to considerably reduce the number of permanently employed terminal operatives at Tower Wharf you were informed that there would be the requirement for casual employees on days and at times to be specified. We are delighted therefore that at the time you took voluntary redundancy, you informed us of your willingness to be considered for casual employment, but there is a requirement for us to point out the following :

The services you are to provide the company are on an ad hoc and casual basis. This means that while the company will try to give you as much notice as possible when offering work, there is no obligation on the part of the company to provide such work nor for you to accept any work so offered.
....
It is important that you understand and accept the conditions under which casual employment is being offered and we therefore require from you your acknowledgement on the copy of this letter before such employment can begin

Stevedoring & Haulage Services Ltd v Fuller & Ors [2001] EWCA Civ 651 (9 May 2001)

That is a clear case of you having no right to be guaranteed work tomorrow.

**captainham** · 28 September 2012, 16:33

Also found a recent thread on here about this very topic:

http://forums.contractoruk.com/busin...ally-mean.html

I think it's inconclusive as it all comes down to contract wording.

Substitution and One weeks termination