Beware Performance Clause

[Dark Black]

I have just been speaking to a contractor that handed in his notice and was then removed from site. Turns out the client asked the Agency if they had to keep him on as they did not think he would work his two weeks productivley. The contract had a clause that said the contract could be terminated in writing if performance was an issue. The end client promptly terminated the contract. The whole story points to the fact that the agency offer no protection to contractors.

I would suggest anyone with a performance clause has it changed to include written warnings or it can be abused like this. It would good if ContractorUK covered this type of issue and exposed agencies that operate in this manner.

Permie....

[RandyW]

I have just been speaking to a contractor that handed in his notice and was then removed from site. Turns out the client asked the Agency if they had to keep him on as they did not think he would work his two weeks productivley. The contract had a clause that said the contract could be terminated in writing if performance was an issue. The end client promptly terminated the contract. The whole story points to the fact that the agency offer no protection to contractors.

I would suggest anyone with a performance clause has it changed to include written warnings or it can be abused like this. It would good if ContractorUK covered this type of issue and exposed agencies that operate in this manner.

They all work like that you numpty.

[HYpno27]

Hey Backgetyou welcome to the harsh realities of contracting and this forum

[WindyAnna]

I would suggest anyone with a performance clause has it changed to include written warnings or it can be abused like this.

Written warning?!?! Good luck.

Why on earth should there be this "discipline procedure" for a contractor? you get a builder on site to do some work for you, he screws up, he is GONE - you don't sit him down for a little chat about his performance do you?

[TheFaQQer]

No it would not imply MOO/inside IR35 its just a contract which would be the same as any other contract. If the terms of the contract deem for instance that you are only paid on completion of project work and you complete and its not paid then you would pursue this as it formed part of the contract. By chasing it you indicate no MOO just that a debt is owed.

IR35 is a complex subject, I was investigated myself for a year (not just IR35)and ended up owing nothing as I had confirmed but it did get very complex. A single contract plays only a minor part of any IR35 investigation.

I thought that expecting to be paid when the client and agency tell you that there is no work for you to do was exactly mutuality of obligation - an expectation to be paid as an employee would be.

[Bear]

No it would not imply MOO/inside IR35 its just a contract which would be the same as any other contract. If the terms of the contract deem for instance that you are only paid on completion of project work and you complete and its not paid then you would pursue this as it formed part of the contract. By chasing it you indicate no MOO just that a debt is owed.

Agreed in this instance - but in reality how many contractors have this sort of arrangement

I thought that expecting to be paid when the client and agency tell you that there is no work for you to do was exactly mutuality of obligation - an expectation to be paid as an employee would be.

It is - assuming you are on a daily/hourly rate.

[TheFaQQer]

Afternoon, Bear!



A rare foray outside of TPD this afternoon. Get the TPD fire burning and the drinks on, I'll be in in a minute.....

[backgetyou]

I thought that expecting to be paid when the client and agency tell you that there is no work for you to do was exactly mutuality of obligation - an expectation to be paid as an employee would be.

This is the exact point in around about way. The obligation as a permie would be to pay them if you have no work, you cannot sack them for it, you can only make them redundant if the post has gone. You are obliged to keep them on. If you use a contract you are tied to the conditions. Pointers to IR35 can be seen within a contract but they are pointers. If your contract HAS a notice period then if you enforce it you have not created any further MOO as the term was explicit anyway.

I think it depends on how you work and what you earn. If you earn £1k a week and have one weeks notice then its £1k. If you earn £1k a day and you have 3 months notice then its quite a bit more. I do a lot of work that is short term but is agreed, I will book one day here one day there but it makes up my week. If the work is taken away then at least minute then I am still paid as would any tradesman (unless I can rebook the time elsewhere). I get a lot of my work direct and I am always paid for days agreed. If I have to use an agency then I make sure the contract reflects my terms and this includes some form of notice esp if the contract has outgoings such as flat rental etc.

[backgetyou]

Written warning?!?! Good luck.

Why on earth should there be this "discipline procedure" for a contractor? you get a builder on site to do some work for you, he screws up, he is GONE - you don't sit him down for a little chat about his performance do you?

It depends on his contract (again), if you employ a builder to build an extension and sack him on day 2, even if your contract is on T&M you may still have to pay him a set period. Its really down to the contract and what you sign, if the contract says you have to pay him a min of six weeks then you have to pay him this amount or he can claim. You could argue negligence, breach of contract or one of the services laws but thats what a contract is for - an agreement between two parties to specify something.

If the builder has no contract (Sole Trader) then you can dismiss him straight away but this is because the two parties did not specify anything beyond I will pay you £x for y.