Reply to: Notice Period Dispute

[BrowneIssue]

By the way, under contract law if one party commits a breach (i.e. in this case not paying) the other party has the right to void the contract. Witholding services is a perfectly acceptable

I'm not letting this one go.

It is only a breach if the contract states when payment will be made. If you stop turning up because you don't think they are paying quickly enough, and haven't shown you have really tried to get the money, you are in breach of contract, not them. Hence, start the Small Claims procedure but keep turning up.

There are a number of points at which this may not be the case. A director has a fiducary duty.

Absolutely. Every effort must be made to get that money. But failure to fulfil one's own side of the contract must be the last resort.

So start the Smaill Claims procedure but keep turning up.

[ASB]

WRONG. BAD ADVICE. You will then be in breach of contract and can be sued for damages. You can do that if, and only if, your contract says "if the money has not arrived in my account by this day, I will stop turning up".

There are a number of points at which this may not be the case. A director has a fiducary duty. There is a certainly a point at which services **should** be withdrawn in order to minimise further loss. Otherwise the director is potentially exposed to actions from the shareholder.

As an example I had a seriously outstanding invoice with a client and I was providing services to their client, in the process of sorting out the invoice I was advised very strongly to withdraw labour otherwise there were potentially serious consequences under company law.

Correct.

If that were the case then it still isn't. It's the client's customers' customers' customers' ... ad infinitum.

No, no, no, no, no. This is business. There is no 'irrespective of the contract'.

Yes they can. I am using electricity I haven't paid for. In fact, since I can't believe there's a contractor on here being paid in advance, all our end clients are using stuff they haven't yet paid for. YET.

(I'm going to regret that statement. It'll turn out AlreadyPacked gets dosh up front or something like that.)

Only if that is what the contract says. What you are describing is how temp agencies work, not Ltd Co contractors.

Are you getting confused with consumer law? That isn't the same as contract law.

WRONG. BAD ADVICE. You will then be in breach of contract and can be sued for damages. You can do that if, and only if, your contract says "if the money has not arrived in my account by this day, I will stop turning up".

No they are not losing a supplier. Their supplier has a supplier problem - you - and they will fix it by finding another supplier.

NOT starting the small claims pocess is wasting time.

You do that at the same time.

They neither know, nor care, nor need to know while people like you are giving out wrong advice.

Wrong, wrong, wrong, wrong, wrong. It's not about outsmarting them, stupid. Just use the law.

Are you a recruitment agent, by any chance?

With respect to all of that, I'm a contractor who has applied all those situations and proven them to be correct. They are all legally sound if you have, like me, a legal qualification. Contract law is a great thing......

By the way, under contract law if one party commits a breach (i.e. in this case not paying) the other party has the right to void the contract. Witholding services is a perfectly acceptable - and legal - means of doing so. It goes on day in day out in the commercial world and Ltd Co contracts are no different, unless you've not been smart enough to ensure your contract is worded as a supplier type contract that is.

and don't call me stupid. Just because you don't agree doesn't make you right. Respect other's points of view but don't make it personal, okay?

[BrowneIssue]

No relationship with the client?

Correct.

How can that be ? The end beneficiary of the work is the client !!!!

If that were the case then it still isn't. It's the client's customers' customers' customers' ... ad infinitum.

Irrespective of the contract

No, no, no, no, no. This is business. There is no 'irrespective of the contract'.

, the end client can't use the work product without paying for it.

Yes they can. I am using electricity I haven't paid for. In fact, since I can't believe there's a contractor on here being paid in advance, all our end clients are using stuff they haven't yet paid for. YET.

(I'm going to regret that statement. It'll turn out AlreadyPacked gets dosh up front or something like that.)

If they pay the agency, then the agency is legally required to pass that payment on as per their contract with you as the supplier.

Only if that is what the contract says. What you are describing is how temp agencies work, not Ltd Co contractors.

if they don't then you are legally entitled to pursue it from the end beneficiary. Its common law !!!!

Are you getting confused with consumer law? That isn't the same as contract law.

If your end client says 'not our problem' then you should immediately suspend services to avoid further commercial loss.

WRONG. BAD ADVICE. You will then be in breach of contract and can be sued for damages. You can do that if, and only if, your contract says "if the money has not arrived in my account by this day, I will stop turning up".

The client will then have to get involved because it affects their business as they are losing a supplier.

No they are not losing a supplier. Their supplier has a supplier problem - you - and they will fix it by finding another supplier.

I wouldn't waste time with small claims court stuff

NOT starting the small claims pocess is wasting time.

until you've rattled your sabre with the agency and put pressure on them to pay.

You do that at the same time.

Most agencies don't know the law as well as they claim

They neither know, nor care, nor need to know while people like you are giving out wrong advice.

- its just a matter of outsmarting them.

Wrong, wrong, wrong, wrong, wrong. It's not about outsmarting them, stupid. Just use the law.

Are you a recruitment agent, by any chance?

No relationship with the client?

How can that be ? The end beneficiary of the work is the client !!!! Irrespective of the contract, the end client can't use the work product without paying for it. If they pay the agency, then the agency is legally required to pass that payment on as per their contract with you as the supplier. if they don't then you are legally entitled to pursue it from the end beneficiary. Its common law !!!!

If your end client says 'not our problem' then you should immediately suspend services to avoid further commercial loss. The client will then have to get involved because it affects their business as they are losing a supplier.

I wouldn't waste time with small claims court stuff until you've rattled your sabre with the agency and put pressure on them to pay. Most agencies don't know the law as well as they claim - its just a matter of outsmarting them.

[itcontractor07]

Coming to the relation ship between myself and the client, they like me very much that they have given me a 10 month contract as against 3 months that they have initially advertised. The only reason the client is terminating within the first 3 months is due to the fact that they had to cancel the complete project.

The positive part that has happened over night is that they have released the funds for February (Which initially they were holding up until I accept the new notice period), although they have given some crap reason for doing this.

Spoke to legal advisors and explained the complete situation and they have informed me that I am still good to ask for my original notice period so advised me to go ahead and inform the same, which I have done.

Cheers

[BrowneIssue]

Stop wasting time and start the Small Claims procedure today. TODAY.

I can't see how the client cannot get involved. Any change to notice period would have come from them.

That's a different contract. There need not be any correlation between the corresponding notice periods.

You have every right to bill them

No you don't. You don't have a relationship with the client. That is as valid as PC World Business chasing me because my water company haven't paid for their last batch of PCs.

and I'd call the agency's bluff by telling them thats exactly what you intend to do.

but expect the client to say "Clear off, troublemaker" safe in the knowledge there is not much you can do about that.

Do all the letters on debt etc in the meantime but the quickest route is to cause the agency problems with the client.

It's the quickest route to the bench too. Clients like contractors that make their problems go away, not ones that cause problems.

Tell the client you are having trouble with the agency not making payment and that you are having to get into legal wrangling with them and at the moment you are working at risk. Leave it at that.

BUT CHASE PAYMENT FROM THE AGENT TODAY.

I have used the Small Claims procedure successfully - it is easy and it works.

I can't see how the client cannot get involved. Any change to notice period would have come from them.

You have every right to bill them and I'd call the agency's bluff by telling them thats exactly what you intend to do.

Do all the letters on debt etc in the meantime but the quickest route is to cause the agency problems with the client. Agencies don't like their client's seeing their poor behaviour and typically stamp it out.

[NotAllThere]

... The most you could ever expect would be for the client to lean on the agency but it would have to be quite exceptional circumstances for that to ever happen....

It depends on the client and the relationship you have with them. If they really like you and appreciate your work, they're not going to want to lose you because the agency is behaving stupidly. And not being paid is a good reason to not work.

And while it is considered by courts that first class letter is consisted as received 2 days after it's posted in the case of the agency if you can prove they made lots of fuss over you getting the original contract , which most agencies do, then the fact you have not got that amendment and they made no additional fuss to check you received it would indicate on the balance of probabilities they are not being truthful.

Hence my advice about polite dunning letters. It adds weight to you being a reasonable person, and them being unreasonable. In any case - they can't not pay because you've not accepted an amendment to a contract.

[SueEllen]

Thank you very much for all your responses.

One thing I can definitely confirm is that I have not received the letter. Please find my answers for some of the questions you guys have asked.

1. I dont think they have sent the letter by any kind of secure post like registered or recorded delivery. If they had I am sure they will be able to prove it and the agency would have by now made it very clear they have a substantial proof of delivery. My gut feel is that they have made repeatitive mistakes, 1 writing the 30 days notice in the contract in place of 2 weeks notice (Which they have admitted as thier mistake) and now not sending out the letter. They are trying their best to cover up their mistake with no financial impllication and just using the usual words "sorry it was our mistake"

Just another point the small claims procedure is not scary and decisions are made on the balance of probabilities.

And while it is considered by courts that first class letter is consisted as received 2 days after it's posted in the case of the agency if you can prove they made lots of fuss over you getting the original contract , which most agencies do, then the fact you have not got that amendment and they made no additional fuss to check you received it would indicate on the balance of probabilities they are not being truthful.

[deckster]

Thanks once again.

I have just had a chat with the client but I think the client is trying to shy away from this issue as I have had a message saying I have signed the contract with the agency and not the client so if I have any issues I should be taking it up only with the agency and not with the client.

This is correct. The client should not be involved at all, and certainly cannot pay you direct as somebody else has suggested. The most you could ever expect would be for the client to lean on the agency but it would have to be quite exceptional circumstances for that to ever happen.

This is between you and the agency, and you're in the right so go get 'em

[itcontractor07]

Thanks once again.

I have just had a chat with the client but I think the client is trying to shy away from this issue as I have had a message saying I have signed the contract with the agency and not the client so if I have any issues I should be taking it up only with the agency and not with the client.

I think the client is a bit reluctant to get involved in this.

Anyway the more I am reading your posts, the more inclined I am to take the legal route. Keeping huge expenses in view I might not be using a solicitor but if need be I will use the small claims court as suggested by many people on this board.

I am still waiting for a reply from the Agency, so lets see how it goes..

Cheers

I wouldn't go legal - I'd go to the client direct...

I think the agency is just trying it on...some of them are not as smart as they make out.....

[NotAllThere]

www.payontime.co.uk

Start dunning now. Write a letter reminding them that their account is overdue, and that you are adding on an admin charge (see above site) and interest which will continue to accrue until the debt is settled.(see above site). Tell them you expect payment within 7 days. When seven days are up, send them a reminder, with the current debt, including the last 7 days interest. When these seven days are up, issue a final reminder, demanding payment within seven days or legal action will ensue. After seven days, begin legal action. This establishes the debt, and shows that you've behaved in a reasonable manner.

Is this a largish agency? Or it is just a few agents who are the owner directors? If the former then cc all letters to the home addresses of the directors. (Available for a small fee from companies house).

If the client is on-side, then it might be worth having a word with them. Possibly explain that so long as the invoices are outstanding, you cannot come into the office.

In your shoes, my fear would be that the agency are about to go under and they're mucking you about because they haven't got the money to pay you.

[itcontractor07]

Thank you very much for all your responses.

One thing I can definitely confirm is that I have not received the letter. Please find my answers for some of the questions you guys have asked.

1. I dont think they have sent the letter by any kind of secure post like registered or recorded delivery. If they had I am sure they will be able to prove it and the agency would have by now made it very clear they have a substantial proof of delivery. My gut feel is that they have made repeatitive mistakes, 1 writing the 30 days notice in the contract in place of 2 weeks notice (Which they have admitted as thier mistake) and now not sending out the letter. They are trying their best to cover up their mistake with no financial impllication and just using the usual words "sorry it was our mistake"

"Is there any obligation of client to provide you with work? If not : does it matter what your notice period is?"

2.No as far I have understood the contract, there is no mention of the client in regards to providing work.

At this moment I am inclined to go to the court, so at least they will not repeat this next time with any other contractor.

Ideally I wouldn't be happy to loose any money small or big, but I am currently talking an amount of 4800£ for these 2 weeks time. So would you all guys still suggest me to go in to the legal route for this sort of amount.

My gut feel now is to first email them saying

A.I am still insisting on 30 days notice as I have not received the letter

B.There is no right for them to withhold the money they owe me for the month of February.

Also mentioning the fact that if need be I will be proceeding via the legal route.

Thanks a lot for your support.

Cheers