Beware Performance Clause

**Sausage Surprise** · 21 December 2007, 09:42

Originally posted by backgetyou View Post

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.

You're not an employee.....get used to it.
Client can terminate when they like.

**Bluebird** · 21 December 2007, 09:49

I agree

If you "hand your notice in" - ie to tell the client you do not wish to fulfil the contract and would like to terminate early as defined by the said contract - don't expect them to want you to stay.

If you're going - go.

**ratewhore** · 21 December 2007, 09:59

Aye, there's usually a clause in there about immediate termination.If you think about the reality of challenging it if the clause is used, it's really not worth it.

It's part and parcel of contracting...

**TheFaQQer** · 21 December 2007, 10:03

Even if that wasn't there, I'm sure they could say that there was no work for him to do, and therefore he shouldn't bother coming in. If you try and get the money, then that implies a MOO and inside IR35...

**Crossroads** · 21 December 2007, 10:06

All these "disguised employees" should piss off back to permie-land. Typically they i) expect to be treated like permies and ii) are usually not good enough at their job.

I suspect (ii) drives (i) as they are permanently worried about where the next contract is coming from.

Merry Christmas.

**Bluebird** · 21 December 2007, 10:09

Originally posted by Crossroads View Post

All these "disguised employees" should piss off back to permie-land. Typically they i) expect to be treated like permies and ii) are usually not good enough at their job.

I suspect (ii) drives (i) as they are permanently worried about where the next contract is coming from.

Merry Christmas.

perhaps you should have said "bah humbug" rather then merry christmas.

but then again I agree....

**DimPrawn** · 21 December 2007, 10:33

Originally posted by backgetyou View Post

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.

Where did they find you?

**backgetyou** · 21 December 2007, 10:34

Originally posted by TheFaQQer View Post

Even if that wasn't there, I'm sure they could say that there was no work for him to do, and therefore he shouldn't bother coming in. If you try and get the money, then that implies a MOO and inside IR35...

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.

**backgetyou** · 21 December 2007, 10:55

A contract is exactly that a contract. From comments here it seems that many consider their contract gives them no protection. A contract will protect you by the terms within otherwise why bother signing one/having contracts? I myself have never had any contract issues but then I have the terms modified such that I agree with them and that they comply with my working practice. I have had to pursue debts that and again this is common as a contractor particually if your work is at the upper end or the rate scale and esp. when you are only paid on project completion.

Over the last ten-fifteen years the contract market has changed drastically, I see so many contractors moaning that they are 'real' contractors and that the market is now full with disguised employees, or too many paper MCSE's (or whatever accred you wish to choose) or too many immigrants. There is always some reason they are not doing so well. There is so much work in IT that no contractor should ever be out of work or considering going permie unless they find a role with a company that they feel it time to hang up the boots. I prefer the fact I work less and less and still earn more than I ever would as a permie.

Any established contractor would never worry about where the next role comes from as once established investments made would cover any period out of work and once you have enough contacts you dont need to worry as work will come to you.

Beware Performance Clause