Reply to: Problem with the conditions of a contract..

[Denny]

"This is a fixed term contract where the Consultancy has to complete the contract duration. The consultancy cannot end the contract prior to this end date. The employment business can terminate the contract by giving 14 days notice in writing."

Can someone tell me whether this is acceptable, or do I need to get the agency to rewrite the clause, so that "the consultancy" can also terminate the contract with 14 days notice.

Thanks in advance.

You might be onto an outside IR35 winner here, depending on how your accountant views it. The wording specifically states that you are on a fixed term contract (which really goes without saying if you are a business professional). HOwever, they have said it - and in writing too.

A fixed term contract is a contract of employment, whereby an employee is employed for a fixed length of time and has all the rights and responsibilities of being on the payroll. This is clearly not what you are meant to be - otherwise the other wording wouldn't be there, specifically stating that you cannot give notice. This is a non-starter for a contract of employment (of service, to a business, whereby you would insist on having 4 weeks if you had any sense and were sure you were inside IR35) because it bears no resemblance at all to being anything but a fudge to keep you outside of the parameters of employment.

All there time you have no notice and the wording is like this - I would think you are home and dry to being outside IR35 - simply because it is not implied, but specifically stated making your case easier to prove.

T

[tim123]

It's not a claim for compensation though, they are just honouring the terms of the contract - as stated previously they have the right to ask me to attend site, but didn't do so.

It may look like it is them honouring the contract, but it is not.

It is them compensating you, for them not needing you to honour the contract.

If this was a reatainer to make sure that you are available for work at the end of the payment period, then it would be a contractual payment. But if all that happens at the end of the paid period is that you walk away, then this is a compensation payment for them not requiring you to perform the contract.

tim

[Bluebird]

It's called mitigating your loss. If you have a claim for compensation due to termination, you are legally *obliged* to offset your claim with any savings that you have made by not having to fulfill the contract. This includes income that you earn during the period that you otherwise wouldn't have earnt.

tim

It's not a claim for compensation though, they are just honouring the terms of the contract - as stated previously they have the right to ask me to attend site, but didn't do so.

[tim123]

1. Why do I have a responsibility to minimise my clients exposure to risk ? They did this themselves by using a clause in the contract to end that contract early. My business was based on a revenue that hsould have come in for many months, by terminating they stopped this revenue stream - it's a penalty payment you won't find any other business paying this back if they got another piece of work.

2.No I'd be ok, I'd just use my right of substitution as per IR35 and sub-contract.

It's called mitigating your loss. If you have a claim for compensation due to termination, you are legally *obliged* to offset your claim with any savings that you have made by not having to fulfill the contract. This includes income that you earn during the period that you otherwise wouldn't have earnt.

tim

[Bluebird]

Actually as a real business you have a responsibility to minimise your clients exposure to cost, and as such you should have dislosed your new contract and written of the remaining notice period.

Alternatively the client could have insisted you come in and then you would have been stuffed!

1. Why do I have a responsibility to minimise my clients exposure to risk ? They did this themselves by using a clause in the contract to end that contract early. My business was based on a revenue that hsould have come in for many months, by terminating they stopped this revenue stream - it's a penalty payment you won't find any other business paying this back if they got another piece of work.

2.No I'd be ok, I'd just use my right of substitution as per IR35 and sub-contract.

[boredsenseless]

Ahhh, but if they have to give you notice it may mean they'll pay you as well as escorting you from the building.

I had a project that got canned and was given notice, got another gig by end of week and was being paid twice for 3 weeks work !

Actually as a real business you have a responsibility to minimise your clients exposure to cost, and as such you should have dislosed your new contract and written of the remaining notice period.

Alternatively the client could have insisted you come in and then you would have been stuffed!

[Lewis]

Ahhh, but if they have to give you notice it may mean they'll pay you as well as escorting you from the building.

I had a project that got canned and was given notice, got another gig by end of week and was being paid twice for 3 weeks work !

[Bluebird]

I'm tempted to agree ... once one side doesn't want to continue there seems little point hanging around for a week or month.

Ahhh, but if they have to give you notice it may mean they'll pay you as well as escorting you from the building.

I had a project that got canned and was given notice, got another gig by end of week and was being paid twice for 3 weeks work !

[tim123]

I've had this clause before and insisited on it being changed to a mutual notice period. Always had contracts IR35 reviewed and this has never been a problem. Only had to use notice period once in 10 years but I'm glad I had it as was working in a hell hole! My concern with no notice period (and this may be invalid) was that I might be able to be sued for leaving early.

It is valid, and they are able to sue, why would it be there otherwise?

tim

[boredsenseless]

Surely the answer is simple.

If they want you enough they'll change any clause you ask to be changed.

If you want it enough you'll agree to any clause they insist on.

If you don't fall into either of the above, then the onus is on you to decide if you will work under those conditions, if you won't then walk away.

They have good reasons for their notice periods. Recruiting staff and bringing them up to speed costs time and money, and most finance contractors will walk at a moments notice if someone offers more. Flip side is though if you've got a muppet who is giving good interview they are stuck for 6 months if he's no good.

Yes the terms aren't fair, but life isn't, if you want fair go permie...

[Lewis]

After my last contract I am asking for no notice period on either side. They aren't worth the paper they are written on.

I'm tempted to agree ... once one side doesn't want to continue there seems little point hanging around for a week or month.

[Sockpuppet]

After my last contract I am asking for no notice period on either side. They aren't worth the paper they are written on.

[Lewis]

I've had this clause before and insisited on it being changed to a mutual notice period. Always had contracts IR35 reviewed and this has never been a problem. Only had to use notice period once in 10 years but I'm glad I had it as was working in a hell hole! My concern with no notice period (and this may be invalid) was that I might be able to be sued for leaving early.

[Kyajae]

Wouldn't worry about it...don't even bother asking the question. Regardless of what is written down, if you walk out at any stage prior to the end of the 6 months (with or without notice) it will be considered bad form and you won't get any more work with them...

Every agency I've worked for has to agree my company's term that I reserve the right to terminate in the contract becomes adverse. I've had situations of permies engaging in outright bullying and undermining and no support from the people on site.

If the agency refuses to agree to this term then 'feck off and shove the contract up yer ring piece' is usually a term they do understand.

[Vito]

Wouldn't worry about it...don't even bother asking the question. Regardless of what is written down, if you walk out at any stage prior to the end of the 6 months (with or without notice) it will be considered bad form and you won't get any more work with them...