Breached notice period

[craig1]

The reality is that if this were ever taken to court this would be heard by a district judge using the small claims court procedure who will decide on the facts far more than the law. The only things that the judge would care about are:

- there was a valid contract between two businesses, duly signed and operational for however long with both parties acting in good faith
- the service company breached the contract by failing to fulfil the terms of the contract for ending it
- the receiving company invoked the penalty clause in the contract that can be read in a number of ways
- the penalty was deducted from money owed to the service company. I really wouldn't be surprised if there were another clause in the contract that says they can withhold money if they are owed it at the end of the contract.

The judge would hear both sides in about 5 minutes then decide that the innocent party gets a bit of leeway in interpretation because they weren't the cause of the breach. Case over.

Academically it might be a close call as to who would win in a senior court but in a small claims court it's almost a no brainer win for the agency.

[Wanderer]

Academically it might be a close call as to who would win in a senior court but in a small claims court it's almost a no brainer win for the agency.

I disagree. The only loss to the agency when a contractor takes a day off sick is their lost margin, there is no justification for a penalty of 1 day's pay which is about 10 times the agency's actual loss.

The OP should take it to small claims and see what happens. Most likely the agency will just back down without contesting it and why would they - if 80% of the contractors that they screw with this clause pay up then they are quids in so why bother chasing the ones who want to take it legal?

[northernladuk]

I disagree. The only loss to the agency when a contractor takes a day off sick is their lost margin, there is no justification for a penalty of 1 day's pay which is about 10 times the agency's actual loss.

The OP should take it to small claims and see what happens. Most likely the agency will just back down without contesting it and why would they - if 80% of the contractors that they screw with this clause pay up then they are quids in so why bother chasing the ones who want to take it legal?

You are forgetting there is a fundamental and clearly demonstrable breach of contract here. They will be happy to take it legal as the contractor doesn't have a leg to stand on. The only quibble is the amount which they are going to side with the injured party, i.e. the agent. Hiding to absolutely no where this approach.

[Jeebsy]

I mean, if the contractor terminated without notice would they have to pay a full month's worth of billable time? Clearly this is excessive and so is the two days. The agency are taking the piss, stand up to them and fight the bastards.

Someone handed in their notice then left the following day and the agency said they'd be taking 20 days pay off them....I think the guy was so glad to leave he just got on with it.

TBH if it means having to go to small claims i'm not sure its worth it - would have to issue in England presumably and i'm in Scotland now, would be more time off and my new contract is a slightly better rate.

I've asked a mate who is a barrister with a bit of employment experience for an indication so will see how that goes, although if opinions are like the proverbial....

[speling bee]

Someone handed in their notice then left the following day and the agency said they'd be taking 20 days pay off them....I think the guy was so glad to leave he just got on with it.

TBH if it means having to go to small claims i'm not sure its worth it - would have to issue in England presumably and i'm in Scotland now, would be more time off and my new contract is a slightly better rate.

I've asked a mate who is a barrister with a bit of employment experience for an indication so will see how that goes, although if opinions are like the proverbial....

Do a search for dunning and start dunning for the full amount of the invoice. See if they fold.

[Dylan]

What does employment experience have to do with it, it is a B2B relationship?

[SueEllen]

What does employment experience have to do with it, it is a B2B relationship?

Absolutely nothing.

Though a barrister sending them a letter might convince them to pay up........

[speling bee]

Absolutely nothing.

Though a barrister sending them a letter might convince them to pay up........

And if the OP is opted in (i.e. not opted out), employment law has some relevance, I think. Or not?

[Jeebsy]

Sent on what my mate sent me and got this in response:

Your email requests that Agency X quantify the loss incurred that was caused by Jeebsy’s personnel not completing the contractual notice period. We are pleased to do so.

Summary of Actual Costs Incurred:

Item Cost

1 Cost of finding a replacement (includes sourcing, interviewing and assessment) £110

2 Cost of vetting the replacement resource £125

3 Loss of profit on days not worked by WH & non-chargeable days for replacement £120

4 Cost incurred – non-chargeable days for replacement £380

Total £735

Agency X has advised that it will charge Jeebsy's Ltd Co (and recoup by deduction from invoiced fees) an amount of £380 only. Agency X is prepared to accept this reduced sum in this case, as a concession given that the majority of the notice was worked. The amount has been reduced to reflect the value of the days not worked, although as detailed above, Agency X's losses relating to the matter are considerably more.

Given they've been continuously recruiting for the last three years i'm not sure how much of this is true but I don't really care. Too much going on just now. It's not a great deal of money. They're arseholes though. Let that be noted.

[northernladuk]

Sent on what my mate sent me and got this in response:



Given they've been continuously recruiting for the last three years i'm not sure how much of this is true but I don't really care. Too much going on just now. It's not a great deal of money. They're arseholes though.

To be honest some of those figures are a lot lower than I thought they would be.