Reply to: Payment in lieu and unlawful terms in 'opt in' contract

[TheFaQQer]

Humour is permitted.

Since when?

[MrMarkyMark]

You have been canned as you didn't fit with the client. We have all had issues, once we have been doing this for a while, part and parcel. Obviously, it was disappointing to have professionalism questioned, chalk it up to experience and move on.

I do view the 2 weeks disputed notice as loss of earnings because I didn't simply walk into a new contract the following day, and in fact they had already kept me waiting a week past the initial start date due to general faffing around.

As for the notice period, if you didn't work it why should you be paid, start dates always get delayed, part and parcel.
If you have been contracting for 17 years, like you say, you should have come across both these situations before.

It's a shame these forums are made so daunting to new users by the likes of NLUK.

Strewth, MTFU, its a hard world out there .

[WTFH]

Resistance is futile.

No it's not. It's Volts over Amps.


Meditate on that one...


Ohmmmmmmmm

[northernladuk]

Mod note: no in the professional forums. Humour is permitted.

For the OP. That you showed poor judgement is evidenced by the fact the client canned you. The reason the client canned you is that you showed poor judgement. That's the inescapable logic. Arguing about that point is fruitless.

Resistance is futile.

[NotAllThere]

Mod note: no in the professional forums. Humour is permitted.

For the OP. That you showed poor judgement is evidenced by the fact the client canned you. The reason the client canned you is that you showed poor judgement. That's the inescapable logic. Arguing about that point is fruitless.

[northernladuk]

You know what NLUK? I looked a the other posts on these forums first, and when I posted, I knew you'd be the single user to act the clown as usual. Since you seem live on these forums, waiting to spout your usual unhelpful sarcasm, it makes me wonder what experience you actually have as a contractor, as you certainly don't seem to be in work, otherwise you wouldn't have the time you do during each day.

Thanks to everyone else though for their more constructive feedback.. It's a shame these forums are made so daunting to new users by the likes of NLUK.

You kinda forgot I took the time to write a long response to you earlier? I saw a bit of ribbing over an amusing paragraph in a very long and complex post but I took the time to read it and respond. I don't see any unhelpful sarcasm...

[edan291]

You know what NLUK? I looked a the other posts on these forums first, and when I posted, I knew you'd be the single user to act the clown as usual. Since you seem live on these forums, waiting to spout your usual unhelpful sarcasm, it makes me wonder what experience you actually have as a contractor, as you certainly don't seem to be in work, otherwise you wouldn't have the time you do during each day.

Thanks to everyone else though for their more constructive feedback.. It's a shame these forums are made so daunting to new users by the likes of NLUK.

[northernladuk]

Irrelevant, you've been terminated by the client with immediate effect, the reason given amounts to proven to be unsuitable or acted unprofessionally.



It doesn't matter what you say, without a large lump of proof otherwise, namely a statement from each of the site people that you talked to, the client will say you acted unprofessionally by publicly criticising their approach. As someone new to the project a word to one side asking why the approach is taken and "clarifying" would have been sensible. Too late now they've pulled the pin.



There's very little mileage you can make in that situation, the Agent will point to the fact the client told you to your face to get lost, it's at best a fine print dispute and you can't argue that you didn't know. The termination was done because you displayed a poor attitude, that's easily spun into "unprofessional conduct"



If you want them to I'm sure they will add a gross misconduct wording to the much more polite unprofessional conduct.

You've dropped a massive bollock in the clients eyes, there's no going back from that, all you can do since they've agreed to pay all outstanding invoices is make things worse and possibly attract attention to yourself by making it public in court.

Walk away with a shred of dignity, your face didn't fit and they got rid.

Nice response but you have neglected to mention one of the most important factors in the initial post, that being...

My background: Professional contractor / senior developer with 17 years solid experience. I have a good reputation within the industry for being a pleasant and reliable worker, and as such am lucky enough to enjoy good contract extensions with very few gaps between roles.

He's pleasant and enjoys good contract extensions... That's got to count for something surely??

[TykeMerc]

9.2. The Supplier has chosen to “opt in” of the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

Irrelevant, you've been terminated by the client with immediate effect, the reason given amounts to proven to be unsuitable or acted unprofessionally.

I had been brought in at a senior level to ensure "high quality" and offer "project estimation" , alongside general development services. However, after just a few days it was clear that the project was being taken in the wrong direction due to extremely poor coding from an offshore team resulting in an emerging framework that was completely unsuitable and unscalable for the forthcoming requirements. I raised this strongly with some team members and managers but was met with the attitude of "It's a load of c##p but why should you care,

It doesn't matter what you say, without a large lump of proof otherwise, namely a statement from each of the site people that you talked to, the client will say you acted unprofessionally by publicly criticising their approach. As someone new to the project a word to one side asking why the approach is taken and "clarifying" would have been sensible. Too late now they've pulled the pin.

I informed the agency and asked them for an official notice of termination which then took two weeks to supply. It didn't give any reasons and when I asked them they responded with the following:

"It is our considered view that actually we don’t have to give you a specific reason as that was apparently dealt with between yourself and the client at the time of your dismissal. Our contract just says “if the client dismisses contractor for any reason including, but not limited to…” and the client HAS dismissed you. That’s all we care about. And the client is not prepared to pay a notice period, therefore we aren’t, and don’t have to because of clause 3.3.3

We are concerned about the potential loss of business caused by your dismissal from the client, and would therefore be in our right to hold back unpaid invoices as compensation for that loss which was caused directly by your actions. However, in this case, we are going to pay all unpaid invoices for work done up to the dismissal, as the client has said that they will pay us, but obviously we will not be paying the notice period as, as far as we understand, there was no notice period, dismissal was instant, and the client will not be paying us for the notice period.

We do however reserve the right to seek recompense from you if, as a result of your dismissal and actions, we lose future business from the client, and therefore suffer financial loss or loss of future profits as a result of your dismissal and actions."

They have since stated that they 'believe' the reasons to be.. poor work performance / attitude / unsuitability related, but seem unsure and continue to use phrases like "we don't care" and "we take no responsibility whatsoever for the event”.

There's very little mileage you can make in that situation, the Agent will point to the fact the client told you to your face to get lost, it's at best a fine print dispute and you can't argue that you didn't know. The termination was done because you displayed a poor attitude, that's easily spun into "unprofessional conduct"

I am now in a dispute for them for 2 week's payment in lieu of notice, but the 'get out of jail free' clause that they are citing from the aforementioned email is:

"The Agent may terminate this Agreement:
3.3.3 Without notice, if the client, at whose location the Services are being performed under this Agreement terminates its Contract with the Agent for any reason including, but not restricted to, the technical incompetence, unsuitability, or unprofessional conduct of the Supplier."

The contract schedule has the following regarding termination (and bear in mind that 'gross misconduct' has not been claimed by anyone party)

"2 weeks written notice by Supplier, 2 weeks written notice by agency.
In exceptional circumstances, the contract may be terminated by the Client for reasons of poor performance. Formal termination of the contract would only occur after prior counselling/warning had been given to the contractor and at least one week given for improvement to occur. In the case of gross misconduct no period of notice will be given and formal termination will be immediate".

Incidentally, I was not offered any opportunity for remedy or indeed substitution.

Now surely, since this was an opted in contract the suitability should have been ensured by them before introduction to their client (the hirer)? In accordance with Regulation 22(2)(b) they should also have obtained two reference, however it transpires that they didn't contract either of the two recent referees that were provided, each of whom would have offered excellent references. Their threat of withholding payment is also seemingly at odds with the Conduct Regs.

If you want them to I'm sure they will add a gross misconduct wording to the much more polite unprofessional conduct.

You've dropped a massive bollock in the clients eyes, there's no going back from that, all you can do since they've agreed to pay all outstanding invoices is make things worse and possibly attract attention to yourself by making it public in court.

Walk away with a shred of dignity, your face didn't fit and they got rid.

[TheFaQQer]

My background: Professional contractor / senior developer with 17 years solid experience.
...

1. What are the chances of me successfully pursuing the 2 weeks payment in lieu that is due (which is in excess of 5K)
2. Is there a claim for damages in that official written notice from the agency took 2 whole weeks to be sent whilst my company was out of pocket?
3. They are threatening to counter claim if i proceed to a claim, in that I may have damaged their relationship with the client. What are their chances of this being successful given that there has been no impact on their other contractors who still continue to work there.

1 - little to none. You can try chasing for it, but getting paid to do no work (depending on the wording of your contract) is unlikely to happen

2 - I doubt it

3 - If your actions cost them business, and they can show that, and there is a clause which allows them to claim damages then they could. But since they have other people there it's unlikely that your actions impact them at all

[edan291]

Ps. I do have fully authorised time sheets for the 4 days work which I am still requesting payment for 3 weeks later.

[edan291]

Thanks for the replies so far. Psychocandy, you sum it up pretty well. I'm a senior Dev and was placed on a project that had this far been run by juniors. There was no gross misconduct, that hasn't been mentioned in the slightest, the client just felt I would 'rock the boat' despite having introduced me on the first day and said "I'd really welcome your feedback".

NLUK, thanks also, the reason I stated my record was to illustrate that this situation is a one off for me and I am not a habitual 'complainer'. I rarely post on any forums so please forgive and unessesary detail I may have added.

I do view the 2 weeks disputed notice as loss of earnings because I didn't simply walk into a new contract the following day, and in fact they had already kept me waiting a week past the initial start date due to general faffing around.

I was technically more than suitable for the role, but my point is that if they wish to use the notion of unsuitability and NOT gross misconduct, then it was my understanding that the conduct regs places onus on the agency up front before introduction to the client. My references and history show that I am regularly lead developer and team leader, so to place me in a role that wanted just an 'ask no questions code monkey' was a little irresponsible of the agency in my eyes.

Anyway, I do appreciate the feedback and I am going to weigh all of this up against the potential hassle involved. I am in a new role now anyway.

Thanks

[LondonManc]

This seems like two separate issues that they are trying to roll up into one.

If you have signed timesheets, they should be honoured.

[psychocandy]

OP - Out of interest what did you do to upset the client so much? How 'strongly' did you object?

All well and good pointing things out that you disagree with of course and I'm sure you're being professional here but bottom line is you've upset the client and got canned.

The phrase "Not my circus, not my monkeys" seems apt here. If client has decided that they want to do something one way, then they bring in a contractor to help out, the last thing they want is for said contractor to come in and start upsetting everyone.

You're probably right in everything you've said to them but they've decided not to listen anyway and they've got rid of so it hasn't worked out well.

As for notice period, I'd just tell the agent tough tulipe, I'm going for that notice period payment please. And then start a claim if they don't pay.

Assume you have signed timesheets for the time you were there? In which case, agent hasn't got a leg to stand on threatening not to pay these.

Only way is if they can prove somehow you did something negligent I reckon. Just disagreeing with them and having a few arguments is not negligent.

Unless of course you did chin someone

[NotAllThere]

I understood it as: Opted in. Got walked, agent refusing to honour notice period and threaten to sue for their loss of income, what are my options?