Immediate Termination Clause (again probably)

[Notascooby]

Hi all,

I've done a search and picked up a lot of info, most of which says you're contract isn't worth the paper its written on but my question is - should I gently push the agency to re-word or remove the following.

"This contract may be terminated with immediate effect if in the opinion of the Client the Consultancy is not delivering the service to an acceptable level"

Especially as the following is also in place (which I've no worries with and seems fair enough)

"During the first four weeks of the contract, the Client or Agency may give notice of immediate termination of the contract in the event that the Client is dissatisfied with the services of the Consultancy."

Being a stickler for SMART requirements when at work - I wonder just how can you measure "acceptable level"?

Seems like a get out clause for the 4 weeks mutal notice written elsewhere.
I'm happy enough to run the risk but one of the main reasons for changing contract was the 1 week notice period I was going to get from my current ClientCo and the no notice period I was to undertake.

Thanks in advance

[northernladuk]

There is a difference between a notice period and a termination clause. This one is allowing the client to get rid of you if you suck at what you do. No way in hell would I give up the right to get rid of someone if they can't do their job. You might be able to negotiate a change in notice period as the only issue is the amount of time they have to pay you once they give you notice (that is assuming you can do your job properly).

You could try it but I can't see them moving on that one TBH

[The Agents View]

There is a difference between a notice period and a termination clause. This one is allowing the client to get rid of you if you suck at what you do. No way in hell would I give up the right to get rid of someone if they can't do their job. You might be able to negotiate a change in notice period as the only issue is the amount of time they have to pay you once they give you notice (that is assuming you can do your job properly).

You could try it but I can't see them moving on that one TBH

What he said

[Zippy]

Notice period - meh. If there is no work for you to do you won't get paid anyway. so wouldn't worry about this one.
Termination clause - maybe you could get it changed to something like "may be terminated immediately if the client has reasonable cause to believe the Consultant is not delivering the service to an acceptable level". You don't want them accusing you of being incompetant just so they can get rid of you quickly.

[Kanye]

This is obviously very relevant to IR35 too.

I negotiated down from 4 week notice period to 2 in my first contract, and would be happier with 1 week to be honest.

[mavster07]

Defining 'competence' can be a very subjective thing and its usually the client that applies that subjectivity.

But there are things you can do to 'ring fence' or 'limit the effect' of those types of 'immediate notice' clauses, and whether you do so depends on a range of factors like the risk of the project / role, the nature of the client, the skills they are asking for etc.

One way is to include the role specification in the actual contract itself. Aside from helping from an IR35 point of view, it specifically lists the skills and experience that the consultant supplied under that contract must possess. If the role isn't specific as to number of years in a skillset (e.g. 3 years Java experience), then this is the fault of the client. Listing the skills, and where possible the number of years, then mandates the client to prove - in the case of termination - that you did not have that level of experience (although the proof can sometimes be on you too). When it comes to 'competency' the ways in which that skill are applied (e.g. Being able to write message driven beans ) are specific applications of that skill, and if those aren't asked for then the client can't, rightly, terminate if they didn't request those.

Another way is to put a clause in the contract around immediate termination something like:

Where the Consultant has been identified as incompetent, the Consultant will be afforded 7 days notice and a further 7 days to remedy any defect identified by that competency shortfall.


These are things you can try on if you feel that the client may not know what they want or have a history of termination of prior contractors. I put clauses like this into a previous contract where I knew the person I was replacing had been terminated for incompetence and I refused to take the contract without them in, citing the riskier client environment that 'may' exist that contributed to the prior contractor's failure to deliver. I was right and as it was explained properly it was agreed by the client.

None of this guarantees that the client, if they really want to, finding a way to make you look incompetent or twisting the meaning of skills and experience to mean something different. But at least, if there's a lot at stake and you want to challenge it, your contract is more specific than less, and you have a good basis on which to either continue the contract or contest it and get some sort of outcome you are happy with. Contracting is a risky game and with the one sided contracts that exist in the market today, you have to be clued up to protect your position as much as possible.

[mavster07]

I should add to the previous post this.

By including the role skills and experience (and responsibilities if known), it puts a legally binding responsibility on the agency, and therefore the end client (if its a back to back contract) that they have vetted those skills and that they agree that the skills meet a minimum standard that the client has requested. If the client has (presumably) gone through the interview process, then its for them (and the agent beforehand) to have vetted those skills.

Its no different to entering into a contract for a product.