Agency Forgot to Give Me Notice - Do I Exploit Situation?

[malvolio]

Garening leave for contractors does exist. Snag is, it blows a massive hole in any defence you may care to put up regarding IR35. If your client wants to keep you on on full pay with no work to do, you are clearly working under a contract of service and should therefore be paying full PAYE and NICs on 95% of your gross for the duration of the contract.

So less of the arrogance, all you're proving is you don't know the laws governing your trade. Which is not a good place to start fom when criticising those of us who do.

And if you don't want advice, don't ask questions.

[MayContainNuts]

Garening leave for contractors does exist. Snag is, it blows a massive hole in any defence you may care to put up regarding IR35. If your client wants to keep you on on full pay with no work to do, you are clearly working under a contract of service and should therefore be paying full PAYE and NICs on 95% of your gross for the duration of the contract.

So less of the arrogance, all you're proving is you don't know the laws governing your trade. Which is not a good place to start fom when criticising those of us who do.

And if you don't want advice, don't ask questions.

WMS

I do hope the OP is paying his full IR35 contributions on this contract.

[pmeswani]

Good to see all the usual arrogant t***s on here spouting like they know everything jockeying at their keyboards and belittling everyone in their path with their cocksure opinions.

No, this is not my first contract (wrong MyUserName) and I knew someone would bite when I mentioned "gardening leave" and get all spacky about it. Quick life lesson: Just because YOU haven't experienced it, doesn't mean it DON'T exist!

Gardening leave for contractors does exist. fraymond has had it before, and in my last contract, a contractor that started the same week I did was let go after less than a month because he was crap, and he got his full week's notice paid without having to come in. That's sounds like gardening leave to me. And guess what, MyUserName - yes, I do work for that IB and yes I have been laid off. Oh, you you you mean I actually don't? I work for my limited company which works for the agency which works for the IB? And my company's services have been terminated? Give me a break. As far as everyone in the real world is concerned, I work for the IB and I've been sacked. I just happen to be a contractor, not PAYE. End of. Go on, convince me of the technicalities of contracting and the middle men involved and the semantics, like I don't know. Or, stop spouting pointless goop.

Bottom line is, everyone in here thinks they're right. Yet, there's lots of conflicting opinions, which means not everyone can be right. I hear those saying I've got no chance and will be a victim of MOO very quickly and will get nothing. I hear those saying go for the compromise and gain brownie points with the agency/client. I hear those saying it's just business and I should screw them for the full 14 days as I'm entitled. What I don't hear is anything based on solid knowledge or experience - only conjecture and opinion.

In any case, I think I'm going to go for the compromise - I've got an offer on the table and at least one or two more in the next couple of days. So, it makes sense to go for the compromise if I can start my next gig early.

The Agency is contracted by the client to find a candidate for the role. The agency is the supplier of services to the client. If you are successful in the client screening of the Agency candidate, then the client awards the Agency the contract. The Agency will offer you a contract for which you can accept or turn down.

If your company hasn't registered with HMRC with regards to PAYE (even if you are not paying a penny in Income and NI Tax), then you are also breaking the law. You are PAYE registered, right? You do also have IR35 Insurance, don't you?

If your contract states that the client is not obligated to provide you any work, but you are entitled to get paid, I would be concerned, as this would most likely put you inside IR35. I see no conflicting advice on the opinions provided to you by the members of the forum.

Regarding your former contractor colleague, I don't know what his contract terms were, so we don't know if he was inside IR35 or not. Nor do we know the exact circumstances for why (s)he was asked to leave. So don't be insulted if we don't take your word for it.

I have walked away from a contract once, and served my notice. The client was happy for me to give a weeks notice and asked me to leave immediately, due to the sensitivity of the project, and yes I got paid for the week. The client was under no obligation to do so, but I made sure I was available to the client for the whole week if required before seeking a new contract. This isn't gardening leave. I was free to find new work at any time. I wouldn't have sued if the client didn't pay up, as I know that I wouldn't have had a leg to stand on.

Gardening leave, if I understand correctly, means you are still "employed" by the company, which therefore means you are not legally allowed to find alternative employment. As your contract has come to an end, how are you "employed" by the client?

[fraymond]

I hope you have all your insurances up to date. Saying that I don't believe you. You have posted some odd stuff so far so I am thinking troll.

Let me respond in all seriousness as I have no need to troll on this one. The project was a technical one at an IB in a security related field. The 3 weeks obviously wasn't called "gardening leave", but the project did end abruptly (due to cost cutting) and my contract did have a notice period. And so they mandated that the team left that day, and I can't speak for the other members, but they did honour paying out my notice. As far as I know, that was actually pretty standard practice at that bank - business sense aside. A further point is, I ended up going back to that bank and specific building later in the year as the exit was cordial and professional on both sides.

[Guest22]

Much better Constructive answers.

pmeswani, to address your post - yes, there is plenty of conflicting statements in the replies on this topic. Some have specifically said I will get MOO'ed and get nothing. Others have said I will get paid for the full notice period no problem. That conflicts AFAICT.

To answer all your queries regarding my business position, as everyone seems to be assuming I haven't got my affairs in order for some obscure personas-on-the-internet-are-noobs-and-know-nothing-until-proven-otherwise reason...

Yes, I'm PAYE registered of course.
Yes, I have IR35 insurance with QDOS.

Why would you think someone wouldn't have the above in place? Do you think requires acumen to know the above? I think it's blatantly obvious.

And gardening leave does exist for contractors. Because that's how I like to call it, as do many people. If you want to call it something different, feel free - but I want to call it 'gardening leave' because it's almost exactly like a permie being laid off getting paid to not come in. The contractor has leave of absence to stay at home and do the gardening and come in if asked. The permie has leave of absence to stay at home and do the gardening and come in if asked. Both can freely choose to terminate this arrangement at any time and risk not getting paid and possible litigation. If you disagree with any of that, tell me exactly which bit and why. Because I've experienced all of it personally.

Anyway, as I kind of expected, I've ended up in a tussle with the "regulars" on here over semantics and big assumptions, and am none-the-wiser as to my situation. This topic would be useless to any other member looking for answers in a similar situation.

[GB9]

Some startlingly bad definitions of moo based on what some posters have written. Not being obliged to find a contractor work does not over ride the need for a notice period to be followed.

OP. Think long term. Take the compromise. My last contract ended a month early as I had finished what I was there for. I left on good terms with the client pleased I hadn't tried to milk it. 2 weeks ago they rang about more work. If you intend on being a long term contractor then think long term. Yes you will lose out now and you may get no long term benefit, but you would be surprised at how lasting an impression being awkward can create even if not originally your fault.

[kingcook]

And gardening leave does exist for contractors. Because that's how I like to call it, as do many people. If you want to call it something different, feel free - but I want to call it 'gardening leave' because it's almost exactly like a permie being laid off getting paid to not come in.

You go ahead and call it "gardening leave" then.

You might also want to use the terms "employment" and "employer" aswell

Good luck trying to prove you are in business in any possible IR35 enquiries.

[malvolio]

Mututality? Wossat then?

There is always a degree of mutuality, else nobody would get paid for working. You have to aim for an irreducible minimum of mutuality (hence MoO - gosh...), which is best expressed as being that the client doesn't have to offer you work and you don't have to accept it if offerred. It's nothing to do with being paid (proven work done = income, no pwork = no income; no more, no less) nor is it anything to do with notice periods.

It's also riciculous to stop with the contract between you and the agency; they are only the middle men in an end-to-end contractual nexus in which all parties have an equal part, and any claim you make for payment against the worker/client contract has to be reflected up the chain, the only exception being if the agency has screwed up or cheated you (and which may be at the heart of the OP in this thread, of course, although I don't actually see it that way myself).

However the point about a notice period being honoured when work has dried up can be construed as you being paid when there is no work to be done, and therefore there is more than an irreducible degree of mutuality and there went your IR35 defence unless you can argue that it was a commercial decision based on how much the client wanted to give you money for doing nothing. The same applies to gardening leave, as I already said. None of it is fantasy, cases have been lost on flimsier grounds, and cases have been won, comprehensively, because the worker went home without pay when the systems went down. It was also a key factor in the original RMC case (feel free to look it up; it's even quoted on the HMRC website).

But if people aren't going to keep up with the case law decisions that control their whole contractual construct, then confusion will continue to reign.

End of sermon, I'm off for a drink or three.

[BrilloPad]

To answer all your queries regarding my business position, as everyone seems to be assuming I haven't got my affairs in order for some obscure personas-on-the-internet-are-noobs-and-know-nothing-until-proven-otherwise reason...

Why would you think someone wouldn't have the above in place? Do you think requires acumen to know the above? I think it's blatantly obvious.

Anyway, as I kind of expected, I've ended up in a tussle with the "regulars" on here over semantics and big assumptions, and am none-the-wiser as to my situation. This topic would be useless to any other member looking for answers in a similar situation.

Considering your posts I am amazed this thread has not been moved to general where you can get a proper shoeing.

But in summary I *think* you are saying you can get paid but are not sure if you should take the money. Why not take it and give it to charity? Or perhaps you could re phrase the question in English.

[Guest22]

kingcook, yes I will indeed call the IB my employer because, from the dictionary definition...

em·ploy/emˈploi/
Verb: Give work to (someone) and pay them for it.

Legally, or technically, my limited company employs me and it provides a service to the client. But if I ever have to fill in a form for a medical prescription and it has an 'Employer' box, I will frikkin put ClientCo, not my limited company! If I ever get investigated by HMRC, I will damn right never use any word that starts with 'Em' and ends in 'ploy[er|ment]'. Happy?

Geez, you clearly aren't in IT contracting otherwise you'd have a grasp of the real world rather than deliberating over semantics. I reckon you're a supply teacher but the teacher forums aren't very active these days...?

malvolio, thanks for your post. Yes, I understand all that. However, the reality of my situation is, if I ever got investigated for IR35, they would see this: I got given notice. There was a cock-up in the dates. Reference my contract - we reached a compromise. I worked for 7 days (let's say). I got paid. I did work. I was in the office. Job done. What's the problem with that? MOO is irrelevant here. I'll be working my notice. End of.