Reply to: Agency holding onto my money

[jh0711]

common one this (not surprisingly)

answer is that you do need to sue your brolly - chances are you would only get hours worked at minimum wage.

however a good brolly should also try and sue the agency for breach of contract - it is unlikely that the agency/brolly contract has anything in about being paid only when the client pays them - but it would need to be checked.

but if the brolly do not want to upset the agency (as this is where brollies get the majority of their contractors from) they may be a bit more softly softly

keep us posted as to how you get on..

[ASB]

I am currently a PAYE ‘employee’ of the brollie so the above does not really apply to me.

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What are your thoughts, does the panel think my umbrella company could be held liable as my employer?

As tim123 said statutory obligations/responsibilites can't be negotiated away so assuming your contract of employment defines the wage then they are looking pretty sticky to me...

Why not add holiday pay to the claim as well. In for a penny in for a pound.

[contractorabc]

I may be barking up the wrong tree, but if you sue your brolly as "employer" surely all they need to pay you is the minimum wage - i.e. they keep any money they would pay as Dividends.

They could then [ if you win ] pay their court costs out of your divi and still keep the rest.

I would assume that the brolly are under no obligation to pay any divdend if they don't want to ?

Have you tried to contact the other directors of the umbrella company - you could get a lust of their name & addresses from Co House for about £10 - see what their experience is.

This was only ever a temporary arrangement so I went for PAYE through the brollie and do not receive dividends in any form

[Bluebird]

I may be barking up the wrong tree, but if you sue your brolly as "employer" surely all they need to pay you is the minimum wage - i.e. they keep any money they would pay as Dividends.

They could then [ if you win ] pay their court costs out of your divi and still keep the rest.

I would assume that the brolly are under no obligation to pay any divdend if they don't want to ?

Have you tried to contact the other directors of the umbrella company - you could get a lust of their name & addresses from Co House for about £10 - see what their experience is.

[contractorabc]

If the contract with the brolly says:-

Your salary is minimum wage
In addition we will pay a bonus equivalent to 90% off the fees we collect from the contracts you perform less an amount equivalent to minimum wag and emplyers national insurance then there is a good chance this would be deemed valid.

I would imagine this sort of wording to be very common. If not the brolly is at risk from any default/non payment and they do not really have the margin for that.

This is not attempting to opt out of statutory obligations, they are still met.

But whether the brolly has their arrangements structured in this way I would not know.

I am currently a PAYE ‘employee’ of the brollie so the above does not really apply to me.

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What are your thoughts, does the panel think my umbrella company could be held liable as my employer?

[ASB]

It is also quite likely that were it to get to court, the clause will be deemed invalid.

In an employer/employee relationship the employer cannot contract out of its statutory obligations.

There is a serious body of opinion that the brolly/punter relationship is one of employer/employee, but this has yet to be tested in court.
tim

If the contract with the brolly says:-

Your salary is minimum wage
In addition we will pay a bonus equivalent to 90% off the fees we collect from the contracts you perform less an amount equivalent to minimum wag and emplyers national insurance then there is a good chance this would be deemed valid.

I would imagine this sort of wording to be very common. If not the brolly is at risk from any default/non payment and they do not really have the margin for that.

This is not attempting to opt out of statutory obligations, they are still met.

But whether the brolly has their arrangements structured in this way I would not know.

[tim123]

"'m suing them because they are my employer. Surely they have a legal obligation to pay me as their employee regardless of whether or not they have received the funds??"

Yes. But that will probably not yield the result you hope for. What you think of as your wages - presumably your rate less the brolly cut and what your wages actually are may turn out to be somewhat different.

Read your contract of employment very carefully.

It is quite likely that your brolly has this covered.

It is also quite likely that were it to get to court, the clause will be deemed invalid.

In an employer/employee relationship the employer cannot contract out of its statutory obligations.

There is a serious body of opinion that the brolly/punter relationship is one of employer/employee, but this has yet to be tested in court.

tim

[ASB]

"'m suing them because they are my employer. Surely they have a legal obligation to pay me as their employee regardless of whether or not they have received the funds??"

Yes. But that will probably not yield the result you hope for. What you think of as your wages - presumably your rate less the brolly cut and what your wages actually are may turn out to be somewhat different.

Read your contract of employment very carefully.

It is quite likely that your brolly has this covered.

[DS23]

if you are on site - get off NOW.

[contractorabc]

Just one question - why would you sue the brollie when it's the agency that hasn't paid

I'm suing them because they are my employer. Surely they have a legal obligation to pay me as their employee regardless of whether or not they have received the funds??

To answer a few other questions:

I don’t want to give out the agency name at this point, at least not until I have taken this further.

Timesheets have been submitted correctly and have previously be paid no problem

The agency is based too far away and would need a day off work to pursue

There are two invoices which are now over 30 days overdue, shan’t be submitting any further timesheets until this is sorted

I’ve talked to the client but they have said it’s out of their hands

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Thanks for the responses guys, how do you reckon I should go forward?

[John Galt]

Just one question - why would you sue the brollie when it's the agency that hasn't paid

[DS23]

I had a agency try this once, 30 days is maximum payment period if all the paerwork is done.

I told them I was going to that them to the small claims court. You can add the cost to them and interest, but they suddenly paid up.

i tried that to an agency that didn't pay. they went down the toilet and i got nothing.

but at least it was worth a try

and i should have done it immediately they defaulted.

time wasted is money lost.

[mictech]

I had a agency try this once, 30 days is maximum payment period if all the paerwork is done.

I told them I was going to that them to the small claims court. You can add the cost to them and interest, but they suddenly paid up.

[foritisme]

Are they a large well known agency ?

How many payments have they received and not passed on ?

Have you talked to the client ?

Have your timesheets been completed in accordance with their instructions ?

(I know it would be nice if they told you they hadn't, but one guy I worked with wasn't getting paid till he realised he was faxing his timesheets to a previous agency - no one said a word to anyone else)

[DS23]

what are the timeframes? i mean - when was the invoice due to be paid by the agency?