Notice period for Agency, but no notice period for contractor

[jamesc1]

Hi

I recently received a new 6 month contract where the notice period for the Agency was 28days, but for me it stated I was not allowed to give notice period and must work the full duration of the contract. I challenged this and was unwilling to sign so it was changed.

Can you tell me if this is common in contracts? I found it to be unfair and think it might even be unlawful. Any advise?

[privateeye]

Can you tell me if this is common in contracts? I found it to be unfair and think it might even be unlawful. Any advise?

Yes its common practice but like you I will always challenge it and get it changed.

[boredsenseless]

Yes its common practice but like you I will always challenge it and get it changed.

It most definetly isn't unlawful. If you are an employee it could be under certain circumstances but as a business it most definetly isn't

[The Master]

Quite right. Generally speaking all's fair in b2b contracts. Unless it's requiring you to do something illegal of course.

[Mailman]

It may not be illegal but if this ever went to court the likelyhood of the no notice clause being upheld is remote.

No matter what people like Tim will say , contracts do actually have to be fair and equitable. If a contract for "employment" looks like it leans too heavily in favour of the agency/employer then most likely an tribunal will look more favourably in favour of the contractor/employee.

Mailman

[jamesc1]

Thanks

Its not a big deal really, I just thought it was unfair and was thinking if the job isn’t what it was sold to be and I left then could I be liable to pay the agency commission for the remaining duration.

Very interesting to get all your views though
Thanks for all your comments.

[malvolio]

I'm sure I said this already but I'll say it again - if they can cancel and you can't, there is no Mutuality Of Obligation, therefore it is highly likely you cannot be caught by IR35.

Is that too difficult to understand?

[tim123]

No matter what people like Tim will say , contracts do actually have to be fair and equitable. If a contract for "employment" looks like it leans too heavily in favour of the agency/employer then most likely an tribunal will look more favourably in favour of the contractor/employee.

Mailman

And in what way do you think that being held to a three month fixed term is unfair.

If you contracted a builder to build an extension for you, and the estimated time is three months, do you think that it is fair to have a contractual condition that the builder should actually complete the work?

tim

[privateeye]

And in what way do you think that being held to a three month fixed term is unfair.

If you contracted a builder to build an extension for you, and the estimated time is three months, do you think that it is fair to have a contractual condition that the builder should actually complete the work?

tim

No thats not unfair but if the builder committed to you for 3 months and turned his other clients away to be held to that contract then it would be unfair if his client was able to walk away after he turned down other opportunities - I simply have a business rule that says I will commit to my client as much as they are willing to commit to my business. If we don't agree I have a right to turn the work down as they have the right to turn me down - its called negotiation. If the client/agent had no notice period either way then I'm happy with that also.

[tim123]

No thats not unfair but if the builder committed to you for 3 months and turned his other clients away to be held to that contract then it would be unfair if his client was able to walk away after he turned down other opportunities - I simply have a business rule that says I will commit to my client as much as they are willing to commit to my business. If we don't agree I have a right to turn the work down as they have the right to turn me down - its called negotiation. If the client/agent had no notice period either way then I'm happy with that also.

This may be true, but I was addressing the point from Mailman about it being legally invalid as unfair.

It's neither unfair (as you seem to agree), nor illegal and thus unenforcable.

If, from a business standpoint you do not wish to enter into such a contract then you are free to make that decision. But you cannot, as Mailman is advocating, take the view that the clause is unfair, unenforcable and thus ignorable.

If, as a company director, you agree, on behalf of your company, to perform a contract for a (reasonable) fixed period or one with unequal or longish termination clauses then the courts will uphold those clauses and expect you to provide specific performance or the normal compensation for lack thereof.

So what is a reasonable fixed/notice period for a 'professional' service. We can argue over this all day I'm sure, but back in the world of 'employment', senior professional staff are on three, or somtimes even six months notice so I can't see how anyone is going to argue that the same time period for the supply of professional services is unfair.

timmy