Reply to: Dispute with agency - worth pursuing?

[jmo21]

You're having a laugh, arent you? I used to love working my 5 days into 4 and having a 3 day weekend. Perhaps its because you think some contractors are daft enough to work 12 hours a day 5 days a week in fear of telling their client they wont do it?

I did compressed 4 day working, 35 to 37 hour week for over 3 years and I felt less tired and more refreshed than working the same standard 5 day week with daily travel.

Lots of people work what they call continental shifts ie 12 hours a day for 4 days then have 4 days off. It doesnt affect productivity one jot.

No Bolshie, I'm not "having a laugh", it's just how I feel about it.

Good for you that it works, and good for others too if it does.

I suspect for most though, productivity trails off dramatically before the end of a normal day, never mind 12 hour shift or whatever.

Of course, if you have a crazy daily travel time, that will certainly help.

re: the bit in bold. I've never done that, and will only on the very special needed occasion work more hours than required. Not sure why you think I think that?

[TheFaQQer]

If your contract isn't as described and the agency terminate, you can claim off your ipse insurance. (Not sure how much, but might be enough to find a better gig)

£1k with an annual limit on how many claims (I think it's only 1, but can't be sure).

[mudskipper]

If your contract isn't as described and the agency terminate, you can claim off your ipse insurance. (Not sure how much, but might be enough to find a better gig)

[TheFaQQer]

That being said, compressed hours has never made sense to me. I have a friend who works permie, doing compressed hours as a workplace benefit as he has young children. I'm sure there are studies that look at this type of thing, but I just don't think you can be as productive working longer hours.

About 6 weeks after my daughter was born, I was sent to a project 210 miles away full time (I'd accepted because it was meant to be a three day week).

I told the PM that I'd expected part-time, but since I'd signed on for the six week role, I would do that and then move onto something else, and also suggested 5 days in 4. He wasn't keen, but then realised that (a) they would pay one night in the Hilton less for me; (b) I'd bugger off on a Friday lunch time anyway; (c) they wouldn't get anyone with the skills they needed anywhere else if I left.

So mid-week the first week, he suggested we try it. For the year I was there, I would turn up mid-morning Monday, work 40 hours, and leave about 6pm on the Thursday night. Boot it up the motorway (average door-to-door speed of 70) and get home at 9 for a three day weekend.

Meant that I could look after the little one for three nights a week so my wife could recover a bit, and she got the four nights looking after the baby. Which was just as well because she was a nightmare child for the first 14 months.

[BolshieBastard]

That being said, compressed hours has never made sense to me. I have a friend who works permie, doing compressed hours as a workplace benefit as he has young children. I'm sure there are studies that look at this type of thing, but I just don't think you can be as productive working longer hours.

You're having a laugh, arent you? I used to love working my 5 days into 4 and having a 3 day weekend. Perhaps its because you think some contractors are daft enough to work 12 hours a day 5 days a week in fear of telling their client they wont do it?

I did compressed 4 day working, 35 to 37 hour week for over 3 years and I felt less tired and more refreshed than working the same standard 5 day week with daily travel.

Lots of people work what they call continental shifts ie 12 hours a day for 4 days then have 4 days off. It doesnt affect productivity one jot.

[jmo21]

- I queried the situation with the agency, and after ignoring my request, refusing to answer and trying to imtimidate me, they eventually admitted verbally (although they refuse to do so in writing) that their upstream contrat with the client states that I must work the client's normal working hours, even thought the contract they gave me said I had the choice of when to perform the work.

An interesting test case indeed.

Taking a step back, I can understand why a client would want you to work close to "normal" office hours. (forgetting sliding your day an hour or so at either end)

While many contracts will be solo work, many will also involved collaboration with project team members, so just because you COULD do your work in 4 days with compressed hours, it makes you less available for meetings, queries from teammates etc.

That being said, compressed hours has never made sense to me. I have a friend who works permie, doing compressed hours as a workplace benefit as he has young children. I'm sure there are studies that look at this type of thing, but I just don't think you can be as productive working longer hours.

Regardless, the agency has messed this up not having the contracts aligned. Or maybe it was intentional just to get you to sign up and assume it won't matter later.

What kind of termination clauses do they have? Out the door at any time?

[TheFaQQer]

"In the event that any clause contained in this contract differs from clauses in the contract between the agency and the client, the clauses contained in this contract shall take precedence" or similar in your next contract might help avoid this kind of thing.

Since the clauses in your contract are invalid, you might find that if you wanted to you would be able to rescind the contract and walk away because it is a sufficiently egregious breach of the contract. So rather than the client terminating the contract, you at least get the pleasure of downing tools and walking out the door.

[eek]

Isn't this one reason why we now are on professional working days rather than hourly rates...

Personally the agency have made 2 screw ups..

1) Different contracts between parties and

2) not making it clear that its daily attendance that is important not total hours worked by quoting professional working days rather than hours...

[original PM]

However the key point is that quite clearly the agency contract has been written to try and look 'outside' IR35 whilst in reality the end client wants someone who works five days a week and is probably under direct control and command.

The agency is in the wrong here but all you would end up doing by taking it down a legal route is to ensure the contract between the agency and you is clearly within IR 35 and all that that entails as the agency will never try and persuade their end client to change their views.

[Andy Hallett]

Dispute with agency - worth pursuing?

Might be worth understanding from the client 'why' you must do your 37 hours in 5 days.

On the few occasions HMRC have done an IR35 investigation on one of our conractors they have asked to see the contract between us and the client to ensure that the reality of the situation is the usual No Moo, substitution etc.

I would think it is a very long stretch for you to prove loss of earnings.

[NotAllThere]

Indeed I did query the matter with both the client and the agency as soon as I got the initial refusal, and I explained to the client what my contract said, and that I was only trying to find hours to suit everyone within the contractual agreement. I was told though that their decision stood (i.e. must work 5 days a week), and advised that pressing the matter would result in termination.

At that point, I would have called their bluff. "If I can't switch to 5 days, I'll have to give notice". Recruiting replacements, unless you're really just a replaceable bum on seat, is costly and time-consuming for the client. If they're that dumb, I don't want to work for them anyway, because there's sure to be more trouble down the line. Of course, ymmv.

[Tubaman]

Thanks everyone for the helpful advice.

I am indeed an IPSE member, and I did try contacting their legal helpline to get an opinion. Unfortunately the chap I spoke to seemed very reluctant to give me any opinion as to whether the matter could be pursued, or whehter the agency were in fact at fault or not, and he just suggested I should contact a solicitor to get an opionion. Maybe I just got the wrong person (it was a Friday aftenoon), so maybe I'll try again this week and see if I can get any further.

[Tubaman]

What was there to stop you notifying the client that you were going to do 37 hours in 4 days and taking on the extra work, and when the client moaned, explaining that your contract with the agency allows you to do this?

Except for the prospect of the client terminating your contract, of course.

Indeed I did query the matter with both the client and the agency as soon as I got the initial refusal, and I explained to the client what my contract said, and that I was only trying to find hours to suit everyone within the contractual agreement. I was told though that their decision stood (i.e. must work 5 days a week), and advised that pressing the matter would result in termination.

[BolshieBastard]

This sounds like a test case in the making...

First, speak to a solicitor who understands contract law: if you're an IPSe member there is always the free legal helpline. Contracts should not contain clauses that cannot be delivered and there is a principle in place ("Parity of Obligation" or some such) that says chains of contracts have to be fully aligned. If your agency has deliberately given you a contract it can't honour then you have a case.

From my own experience I know that quite a few agencies give the contractor any old tulip to secure the work without worrying about what they've agreed with their client and it's about time someone made a major fuss about it especially if, as in your case, it costs you money.

Keep us posted This one could run and run.

Definitely one for PCG, oops, sorry IPSE to pick up and run with then, isnt it?

As for the OP, unless he \ she has deep pockets or a strong nerve, they will not get far with this without it going legal.

[NotAllThere]

What was there to stop you notifying the client that you were going to do 37 hours in 4 days and taking on the extra work, and when the client moaned, explaining that your contract with the agency allows you to do this?

Except for the prospect of the client terminating your contract, of course.