Reply to: Loss of Earnings - CLAIM IT BACK??

[Safe Collections]

We don't think the language used helps here, loss of earnings wouldn't generally be applicable in a B2B contract. However the Ops limited company could theoretically begin a court claim for damages arising from the alleged breach.

Although it should be noted that breach of contract claims tend to be long, drawn out affairs so how economically viable it would be to pursue we wouldn't like to say. If you are considering a claim your first stop should be an experienced commercial litigation solicitor.

[psychocandy]

OP - Im confused. How long did you work for and did you get any payments?

Fair play if agency agreed to 7 days then they should have met the requirements. But theres a way to pursue this correctly.

Fair enough you had enough of the hassle and gave notice but theres no way you can get loss of earnings IMHO.

[PerfectStorm]

Loss of Earnings - CLAIM IT BACK??

Find some way of getting through the first month then you'll have regular cash anyway

[tarbera]

I’m really hacked off.

I work as Ltd but I’m a one person band. I’d been out of contracts for a while so funds were very low, when I eventually secured a choice of two contracts. One with acceptable daily rate, the other a bit on the low side, so I opted for the higher rate. However, as cash flow was an issue, and when they said payment terms of 30 days through invoicing, I turned down the contract. I made it absolutely clear to the Agency and end client I needed a guarantee of weekly payment, 1 week in arrears from the start of the contract – and lo and behold, they came back and promised it – in writing. Based on that promise I turned down the other work.

When I started the contract it became clear they should never have made such a promise.

The client systems couldn’t cope with that, it was invoice/30 day payment terms only, and worse still they hadn’t even secured the internal budget clearances and raised Purchase Orders – basically they had no mechanism at all to pay me let alone weekly. Frankly they should never have even taken me on. So I walked, at the notice period stipulated in my contract. I told them straight I couldn't work in a place of random payments.

Now I am minded to submit an invoice to them for loss of earnings – I now have a new contract - but lost 14 working days. I won’t be greedy I will invoice at the rate of the offer I declined (and have that offer in writing). Any thoughts on my chances of success/similar experiences – I realise it’s a punt. Can it do any harm, in my mind they can only say ‘No’. They are such a shambles they might just not notice it and pay up anyway.

Yes quote the purchase order in your invoice to ensure prompt payment

[NotAllThere]

The fact that the client was unable to process purchase orders or pay on a weekly basis is utterly irrelevant. Your contract is with the agency. It's up to them. Unless you did something stupid like agree that you wouldn't get paid until the agency did.

As far as loss of earnings - I doubt it. You could have stayed on. There was nothing forcing you to leave. It was your choice. You clearly did have the wherewithal to have stayed since you somehow survived financially until you found your new work.

Instead of throwing your toys from the pram, you could have used the situation to emerge as someone who looks for solutions when faced with a problem. Now you won't work for that client again. And word does sometimes go around.

[TheFaQQer]

I am biting my tongue, but punt rhymes with twunt, such rhymes with... Can't bring myself to write it 📢

Not without trying to work out what rhymes with "cojak" and "banhammer" anyway.

[TheFaQQer]

Fair enough, but the whole "in business for yourself" concept is strong in case law, and on that point the BETs were reflecting that case law.

IR35 is, and always has been, determined on a contract by contract basis. The theory behind the BETs was that if you could show that you were acting like a business in many different ways, then you were less likely to be inside IR35 for a particular contract, and therefore HMRC would look elsewhere.

However, there is nothing to stop you being a "genuine" business that still operates inside IR35 for some things that the individual does. For example, in the past directors of the PCG were inside IR35 for the work that they did there, despite being outside IR35 for the other contracts that they undertoook.

I don't think that a claim of "I walked away from a contract and want paying for it" shows being in business for oneself, so I can't see it making any difference in the highly unlikely event of an IR35 investigation into that contract. An attempt to get paid for not doing work on that contract, might make a difference in the highly unlikely event that the 14 day contract is investigated. Not being paid because you walked away from a contract will have no impact on an IR35 investigation into any other contract that you perform, though.

[Scruff]

I am biting my tongue, but punt rhymes with twunt, such rhymes with... Can't bring myself to write it 📢

[WordIsBond]

Fair enough, but the whole "in business for yourself" concept is strong in case law, and on that point the BETs were reflecting that case law.

[TheFaQQer]

Yeah, but in that stupid BET they gave you 10 points if you had been unable to recover payment anytime in the last 24 months.

It's part of showing "I'm in business for myself," and the more you show that, the harder it is for them to prove that any particular engagement is disguised employment.

BETs don't exist any more, so what they did in the past is pretty irrelevant.

[WordIsBond]

Given the contract was 14 days, it's unlikely to be the subject of an IR35 investigation.

Yeah, but in that stupid BET they gave you 10 points if you had been unable to recover payment anytime in the last 24 months.

It's part of showing "I'm in business for myself," and the more you show that, the harder it is for them to prove that any particular engagement is disguised employment.

[TheFaQQer]

Late payment penalties yes, loss of earnings?

If you go after them for late payment penalties, even if you never get it, it will be a nice thing to show HMRC if they ever come around claiming you are a disguised employee. It won't win your case if you really are inside IR35, but if you are borderline it could help.

Given the contract was 14 days, it's unlikely to be the subject of an IR35 investigation.

And if you do get paid, then you proved that there was a mutuality of obligation between the two parties, thereby blowing out 1/3 of any IR35 defence.

Getting paid for doing no work, in the same way a permie would, isn't something that is going to help.

[WordIsBond]

Late payment penalties yes, loss of earnings?

If you go after them for late payment penalties, even if you never get it, it will be a nice thing to show HMRC if they ever come around claiming you are a disguised employee. It won't win your case if you really are inside IR35, but if you are borderline it could help.

[mudskipper]

Let it go.

[Ticktock]

To be fair I think the 14 days was how long he was on the bench after he walked. I can't see how long he lasted and how long his notice period was. Could be because it's just one huge paragraph so hard to read.

Walloftextishard.

I read it as:
Contact A and B available.
Took A.
Left A immediately (at earliest notice period) - guessing worked 7 days, gave notice and left 7 days later.
Took B, but had missed 14 days from potential start date.
Thinks he is owed that 14 days by A (presumably in addition to the amount he is invoicing them for the time he was there).

Either way, prize plum.