Reply to: Contract Terminated after I commenced work. Recruitment agency refusing to pay

[TheFaQQer]

Just to confirm. If I havent been specifically asked to sign a form so send an email confirming that I wish to opt-out before the contract was issued and signed, does this mean that I am ,by default, opted-in to agency regulations?

Thanks

No.

You must opt out, in writing, before being introduced to the client. Many people read that as being "as soon as the client can identify you", which in the vast majority of cases is when they receive your CV. Many people read that as being "as soon as you are physically introduced at interview", and many people read that as being "introduced into the workforce by the client". Some kind of legal precedent would be nice here, but there isn't one.

Whatever way you read it, it needs to be done before you actually start work, though.

[danjericho]

Just to confirm. If I havent been specifically asked to sign a form so send an email confirming that I wish to opt-out before the contract was issued and signed, does this mean that I am ,by default, opted-in to agency regulations?

Thanks

[tractor]

...

All the work was carried out on my own equipment on my own development server. Over the four days of the contract they where very slow in getting me details for their servers, logins, svn details, although I made repeated requests every day for them but was fobbed off with excuses (email is down, infrastructure manager is on holiday, forgot to send them, Ill get them to you first thing, Im busy recruiting people etc etc). On the monday morning (the first day of the contract), they provided me a brief and I started coding. I was never actually able to move my work to their server as I was never given the details to do so.

At most, you can only have completed 4 days. I would chase the invoice you have sent the agency. Don't bother to communicate with the client. It's up to you how far you wish to pursue the agency and how much time you are willing to devote to it. I would be prepared to write it off and find another contract. Sometimes it's just part of the cost of doing business. Yeah it's not good but this is the reason why due diligence in advance wrt the agent and the client can only be good.

[danjericho]

No what I am saying is that at the moment, whilst you have done some work on their behalf, they have not received the benefit of it. This complicates the matter. What does the contract actually say about code delivery? I'm guessing you used your own equipment? If not and you removed it from their domain, you may be exposing yourself to a counter claim. It's all about what's in the contract.

Most of my contracts have had a clause that covers return of equipment and deliverables, whatever state of completion they are in. They also contain clauses that assign property rights, IP rights and copyright to the client. Did your contract cover these points?

All the work was carried out on my own equipment on my own development server. Over the four days of the contract they where very slow in getting me details for their servers, logins, svn details, although I made repeated requests every day for them but was fobbed off with excuses (email is down, infrastructure manager is on holiday, forgot to send them, Ill get them to you first thing, Im busy recruiting people etc etc). On the monday morning (the first day of the contract), they provided me a brief and I started coding. I was never actually able to move my work to their server as I was never given the details to do so.

[tractor]

...

So you suggest I should just go ahead and send them the files?

I dont think its a case of having code to sell. They contracted me to do the work.

No what I am saying is that at the moment, whilst you have done some work on their behalf, they have not received the benefit of it. This complicates the matter. What does the contract actually say about code delivery? I'm guessing you used your own equipment? If not and you removed it from their domain, you may be exposing yourself to a counter claim. It's all about what's in the contract.

Most of my contracts have had a clause that covers return of equipment and deliverables, whatever state of completion they are in. They also contain clauses that assign property rights, IP rights and copyright to the client. Did your contract cover these points?

[Batcher]

So you suggest I should just go ahead and send them the files?

I dont think its a case of having code to sell. They contracted me to do the work.

I certainly wouldn't send them any work you've done until they have paid you. I't unlikely they will pay you after they have received the work now.

[danjericho]

Not if you wanted your invoices paid. You cannot have your cake and eat it. The way I see it now is you have some code to sell and they are not interested in buying it.

So you suggest I should just go ahead and send them the files?

I dont think its a case of having code to sell. They contracted me to do the work.

[tractor]

...

Ive already sent the invoices to the agency and CC'd the end client.



Ive been on the phone numerous times to the agency. Cant get an answer from the end client on phone nor email... clearly avoiding me. The stance of the agency is no timesheet - no pay.

One more thing I should add. Once it became apparent that the contract wasn't going to continue I didn't supply the code to the client. I made them aware that it would be released upon payment of the invoices. Ive provided evidence to prove that the work has been carried out as requested. I just didnt want to give away my time and effort given the fact that I wouldn't get paid for it. Is this reasonable?

Not if you wanted your invoices paid. You cannot have your cake and eat it. The way I see it now is you have some code to sell and they are not interested in buying it.

[danjericho]

Send invoices/letters to both the agency and client about the amount owed and saying you will begin legal proceedings against them if they don't pay within days. Also name the agent/client here so we can all avoid them.

Ive already sent the invoices to the agency and CC'd the end client.

Pick up the phone!

But, your issue is with the agency and it sounds like they haven't a leg to stand on provided you can demonstrate you did the work and everything else is as you portrayed it.

Ive been on the phone numerous times to the agency. Cant get an answer from the end client on phone nor email... clearly avoiding me. The stance of the agency is no timesheet - no pay.

One more thing I should add. Once it became apparent that the contract wasn't going to continue I didn't supply the code to the client. I made them aware that it would be released upon payment of the invoices. Ive provided evidence to prove that the work has been carried out as requested. I just didnt want to give away my time and effort given the fact that I wouldn't get paid for it. Is this reasonable?

[d000hg]

The client unfortunately is the source of the problem. Any emails I send are simply ignored.

Pick up the phone!

But, your issue is with the agency and it sounds like they haven't a leg to stand on provided you can demonstrate you did the work and everything else is as you portrayed it.

[Unix]

Send invoices/letters to both the agency and client about the amount owed and saying you will begin legal proceedings against them if they don't pay within days. Also name the agent/client here so we can all avoid them.

[tractor]

...

I wasnt specifically asked to opt out, although its in the contract. Do they specifically need to ask me to opt out or can they just add it to the contract like this without asking me beforehand?

If you don't sign an opt out before you are introduced to the client, you cannot be opted out subsequently. Statute overrides contract law. The contract clauses that relate to or rely upon an opted out status are unenforceable. I am sure that you will find a lawyer to argue either way but I would err on the side of statute. IANAL so you may need to take advice.

If you are a IPSE (PCG) member call the helpline.

Also, and I'm not being bombastic - you may want to use the time you have on your hands now finding out how much you don't know by using some of the links on the right and looking through some of the stickies in the Contracts and Legal fora. It can only stand you in good stead when you are considering your next contract.

[danjericho]

Then the payment dependant upon reciept of timesheets is not enforceable and you are owed the money. Submit an invoice, check out how dunning works and pursue the debt appropriately.

Out of interest, have you even contacted the client to have them confirm the work that you have provided? I understand they may not want to talk to the agent but that doesn't preclude them from talking to you.

The client unfortunately is the source of the problem. Any emails I send are simply ignored. They are a startup, and I get the feeling that they where never seriously committed to the contract when they signed. They either didnt have the funds, or never had the intention to pay the recruitment agency and caused enough friction until the agency pulled the contract.

[danjericho]

Terms of Engagement of a limited company contractor that has opted out of the Conduct of Employment Agencies
and Employment Businesses Regulations 2003

I wasnt specifically asked to opt out, although its in the contract. Do they specifically need to ask me to opt out or can they just add it to the contract like this without asking me beforehand?

[tractor]

...

I wasnt asked by the agency to opt-out

Then the payment dependant upon reciept of timesheets is not enforceable and you are owed the money. Submit an invoice, check out how dunning works and pursue the debt appropriately.

Out of interest, have you even contacted the client to have them confirm the work that you have provided? I understand they may not want to talk to the agent but that doesn't preclude them from talking to you.