Reply to: Agency Withholding Payment - Signed Timesheet / Notice Issues

[MaryPoppins]

Quite often the client has the right to terminate its contract with the agency without notice. Get them to do so. Then the agency can decide whether to hold the contractor to the contractor-agency contract and keep paying the contractor, or to terminate the contract using the clause that's probably in there allowing them to do so if the client terminates.

BTW if there is such a clause in the contractor agreement, then it is IMHO not immoral for the contractor to leave early if the client is in agreement with that. By putting in such a clause, the agency is implying that the contractor is really working for the client. If the agency wants the benefit of tying the contractor, they should take the risk too: is the agency really the contracting party, or just a transparent agent between the real parties?

This is my view, if the client is happy and a replacement will be found through the agency, there shouldn't really be an issue.

[MaryPoppins]

Well good luck with what you want to do Mary. Just pay up and put it down to experience.

Next time though, please don't waste the 'A friend of mine' post on us hardened types, we know what that means...

Get bent MF.

[MarillionFan]

This is what I disagree with. Agencies must have procedures for dealing with contractors who leave without giving full notice, and it should not involve withholding payment for work completed. Of course, we know it does happen, but I don't think it's tit for tat - as another poster mentions, withholding payment is more than compensating financially for the much smaller amount of lost margin.

In this particular instance, I think the agency are overreacting, as their client is happy enough.

But agencies are within their rights to ask us to abide by the contracts we sign.

Well good luck with what you want to do Mary. Just pay up and put it down to experience.

Next time though, please don't waste the 'A friend of mine' post on us hardened types, we know what that means...

[expat]

Quite often the client has the right to terminate its contract with the agency without notice. Get them to do so. Then the agency can decide whether to hold the contractor to the contractor-agency contract and keep paying the contractor, or to terminate the contract using the clause that's probably in there allowing them to do so if the client terminates.

BTW if there is such a clause in the contractor agreement, then it is IMHO not immoral for the contractor to leave early if the client is in agreement with that. By putting in such a clause, the agency is implying that the contractor is really working for the client. If the agency wants the benefit of tying the contractor, they should take the risk too: is the agency really the contracting party, or just a transparent agent between the real parties?

[northernladuk]

This is what I disagree with. Agencies must have procedures for dealing with contractors who leave without giving full notice, and it should not involve withholding payment for work completed. Of course, we know it does happen, but I don't think it's tit for tat - as another poster mentions, withholding payment is more than compensating financially for the much smaller amount of lost margin.

In this particular instance, I think the agency are overreacting, as their client is happy enough.

But agencies are within their rights to ask us to abide by the contracts we sign.

I agree with what your saying but the reality of it is it happens. How often do we fall out with people working on our homes and it escalates in to something stupid. You are totally right in what you say and I am sure it is just posturing on their side but knowing it is this tit for tat is the difference between fighting your corner because you know they are out of order and walking away because you can't see the game.

[MaryPoppins]

Well there is always the reason that she is being an unreasonable so and so giving two weeks notice so we are witholding it. It's called tit for tat and it happens at all levels. You piss someone off that has something of yours you have to expect it surely. She deoes something wrong, they do something wrong. Discussing who is doing the wrong thing wrong doesn't really count

This is what I disagree with. Agencies must have procedures for dealing with contractors who leave without giving full notice, and it should not involve withholding payment for work completed. Of course, we know it does happen, but I don't think it's tit for tat - as another poster mentions, withholding payment is more than compensating financially for the much smaller amount of lost margin.

In this particular instance, I think the agency are overreacting, as their client is happy enough.

But agencies are within their rights to ask us to abide by the contracts we sign.

[northernladuk]

Not quite how I'd see it.

There's absolutely no reason for an agent to withold 2 full weeks money for losing 2 weeks commission. I mean they stand to lose what 200 quid if the contractor is on a grand a week!

OK, withold their commission (or rather let them disclose their commission by witholding it) from the moneis due but there's no court in the land that would uphold with holding back of 2 weeks money for a 10% commission.

Well there is always the reason that she is being an unreasonable so and so giving two weeks notice so we are witholding it. It's called tit for tat and it happens at all levels. You piss someone off that has something of yours you have to expect it surely. She deoes something wrong, they do something wrong. Discussing who is doing the wrong thing wrong doesn't really count

[Wanderer]

There's absolutely no reason for an agent to withold 2 full weeks money for losing 2 weeks commission. I mean they stand to lose what 200 quid if the contractor is on a grand a week!

OK, withold their commission (or rather let them disclose their commission by witholding it) from the moneis due but there's no court in the land that would uphold with holding back of 2 weeks money for a 10% commission.

BolshieBastard is absolutely right. At very best, the agency can claim back their losses from the contractor which would amount to two weeks commission.

The client and contractor agreed to terminate the contract by mutal agreement. Will the agency be threatening legal action against the client too then? Sounds absurd but it's the exact same scenario. The agency is piggy in the middle here and has absolutely no business sticking their oar in, tell them to butt out and pay up for the hours worked.

What they are probably trying to scare the contractor into is accepting that they withold two weeks pay in lieu of notice or something unfair like that.

Bottom line: invoice for time worked. Agency either pays up or you take it to moneyclaim online and take legal action against them. It's a matter for the small claims court so you won't end up with massive costs awarded against you. The worst that would happen is that you would have to pay the agency for it's lost commission and recover at least 80% of what you are owed (plus interest).

Even if the agency did bring a court case against you (which they won't) and win (which they won't) then you can just pheonix the company - shut it down and start trading with a new one the next day and they won't get tulip.

The agency doesn't have a leg to stand on (legally or otherwise) and they bloodywell know it. Stand up to the bastards and fight your corner. I really don't know why people roll over and get shafted by these shysters.

As for everyone who is wailing about what's written in our contracts, I don't give a tulip about all the one sided stuff that's written in mine. If it comes to an argument then it's going to court and they can argue their one sided contract out there. I'll either get the unfair parts struck out or burn the company and they'll get nothing.

/rant

[SueEllen]

Not quite how I'd see it.

There's absolutely no reason for an agent to withold 2 full weeks money for losing 2 weeks commission. I mean they stand to lose what 200 quid if the contractor is on a grand a week!

OK, withold their commission (or rather let them disclose their commission by witholding it) from the moneis due but there's no court in the land that would uphold with holding back of 2 weeks money for a 10% commission.

While I actually agree with you the "friend" should start finding things out for herself.

If she is too damn lazy to read a contract properly and ask questions then she gets what she deserves.

[BolshieBastard]

Well its fairly cut and dried. The contract is with the agency, not with the client.

By cutting two weeks off the notice. The client is happy and pays less. The contractor is happy and gets away earlier. But the agency loses two weeks commission.

So if I was the agency, then yes, I would withhold payment or take my cut out of the final amount.

She is in breach of her contract with the agency.

Simples.

Not quite how I'd see it.

There's absolutely no reason for an agent to withold 2 full weeks money for losing 2 weeks commission. I mean they stand to lose what 200 quid if the contractor is on a grand a week!

OK, withold their commission (or rather let them disclose their commission by witholding it) from the moneis due but there's no court in the land that would uphold with holding back of 2 weeks money for a 10% commission.

[SueEllen]

I've had more of a think since bothering to ask you lot for your thoughts, and told her she probably deserves whatever they do.

Next time just refer someone like that straight here (and don't reply to the post yourself)

Yes they will be taken apart but they need to learn that they are not playing a game.

[MaryPoppins]

was the notice period 4 weeks between client and agency as well?

if not should have had chat with client and agreed she would be finished - and even agreed that in principle she would be happy to waive the 4 weeks notice and make do with 2

highly unlikely agency will take any action or make any threats to end client.

but yes i think read the contract before you sign it is always useful advice to give to people.

Yeah, she spoke to the client first and agreed 2 weeks notice, so they were happy with that. A replacement has already been found, so I'm not entirely sure why the agency are pushing this so hard with her - my gut instinct is that they are going to withhold payment from her, as she refuses to give the 4 weeks.

Personally, I wouldn't give 4 weeks notice either, but as I said to her, I'd challenge the clause before signing the contract. This is when she admitted she only knew it was 4 weeks notice from the blasting she'd got from the agency, as she didn't read her contract, and needed to check it. I was fairly gobsmacked at that admission, but she was blase about it, and more baffled about the way the agency have reacted.

I've had more of a think since bothering to ask you lot for your thoughts, and told her she probably deserves whatever they do.

[original PM]

was the notice period 4 weeks between client and agency as well?

if not should have had chat with client and agreed she would be finished - and even agreed that in principle she would be happy to waive the 4 weeks notice and make do with 2

highly unlikely agency will take any action or make any threats to end client.

but yes i think read the contract before you sign it is always useful advice to give to people.

[northernladuk]

What has annoyed me with her, is how little she knows about her rights as a contractor.

She's in an awful role, and I do feel for her.

But she has not even read the contract she signed, let alone had any idea of her notice period.

Now the agency are quite rightly annoyed with her, and of course she's turning to good old me for guidance.

She is typical of a lot of contractors I am sitting with right now, happy to take the money, but absolutely no idea of what is written in their contract, what the EAA regs are etc. I mentioned IR35 once and got blank looks, I kid you not.

Ahhh I see sorry. Yes, totally agree with you there. My annoyance at some of the basic questions we get on here shows my lack of patince for this type of thing. I have the same here as well, I have two guys on my desk claiming expenses 4 and 5 years in to the same contract here (IR35!!!!). Don't know whether to laugh or cry.

[MaryPoppins]

Thing is we can all moan about your friend putting notice in early, breaching contracts, making us all look bad and stuff but at the end of the day it is your friends life. If they have been offered something better and don't mind riding the storm then go for it. Would be stupid of us to judge them for that. Gotta look after your own at the end of the day. Would I do something like this if a golden opportunity presented itself? I would try everything possible not to but if I had to then yes I would. Thats life. If they did it on a whim cause the fancied a change then thats slightly different

Yes they can recoup lost revenue as they are in breach of a legal agreement as already mentioned. They can only do something legally if they get it to court, something that to my knowledge no one has done yet so well worth a gamble IMHO. They can shout a lot and make threats so just suffer it for awhile and cross fingers.

What has annoyed me with her, is how little she knows about her rights as a contractor.

She's in an awful role, and I do feel for her.

But she has not even read the contract she signed, let alone had any idea of her notice period.

Now the agency are quite rightly annoyed with her, and of course she's turning to good old me for guidance.

She is typical of a lot of contractors I am sitting with right now, happy to take the money, but absolutely no idea of what is written in their contract, what the EAA regs are etc. I mentioned IR35 once and got blank looks, I kid you not.