Reply to: Substitution and One weeks termination

[d000hg]

I am still convinced this is subcontracting not substitution as I am sure you contract says you must introduce the substitute to the client but anyway.... Doing anything with clients data and solutions that they don't know about is a bad idea period. Helpful or not this is a customers information and not to be used as I see fit. First and foremost are confidentiality trust and respect for your client. Being helpful comes a poor second I am afraid.

In this case, hiring a sub isn't even really what he did - more akin to using ExpertsExchange or something. It reads like he didn't give customer data away, but wanted help with something technical - like me saying "if you can give me sample code which does X I'll pay you £500". But the OP should probably clarify.

While notice and MOO is all well and good, the client should surely have to give a legitimate reason to terminate - even simply "we're allowed to terminate so we are" - rather than to do so on something that is not true. Whether there are any legal angles on that I've no idea but it's one thing to be told "don't come in tomorrow" and another "you have broken the contract".

[Software]

In my understanding, we cannot just like that ask some person to work with client project.

Even if you want to send some one as a substitute, then you need to formally raise it with client and they have to decide whether to accept or not.

But in your case, i dont think, you can take any action against them.

Search for a new gig. Market is good now....

[Wanderer]

I got offered a 10 week contract 5 weeks ago, it was terminated 2 days ago, the reason they gave (even tho they have to give one weeks notice in writting (which I received yesterday via the agent)) was I used a substitute without their permission? I had an issue with childcare 3 weeks into the contract so contacted another contractor (who I knew the client knew about) and asked for some technical help on a solution (I paid him for this and DIDN'T bill the client this or the day and a half I missed of work)

Sorry to hear that you got binned. Sometimes it's difficult to know the real reason behind their decision - I've seen clients that just like to take their frustrations out on contractors pretty much for the fun of it. Presuming that they really did see what you did as misconduct, it may be worth talking it through with the client on the basis that you thought you were acting within your remit as a consultant and offer them an apology in an effort to not burn your bridges.

As for getting paid, my view is that they owe you for the week's notice even if you don't work it. Often the agency will refuse to pay and you should check with the client to see if they are actually paying the agency or not. I would be inclined to press the agency for payment of the notice in any case.

Good luck.

[northernladuk]

Your understanding on MOO is wrong. MOO does not mean that you can turn up the next day and not be guaranteed any work. You have signed a contract, if that contract is for 30 days then you will have to provide 30 days effort and they must accept 30 days effort. MOO means that at the end of that 30 days the other party has no obligation to provide you any more work.

That is why you have a notice period inserted in your contract, if either party did want to end the contract early they have a way of doing so.

Interesting stuff and it would appear you are quite correct. I think quite a few of us have this one wrong as well. Great links and explanation though.

[NotAllThere]

Just make sure you get paid for the work you did. That's about the scale of it.

[Boo]

"somehow" the client and my "helpful" contractor got chatting

"Well thar's ya problem!"

Sorry not to be more helpful but if you will tell your competitors where juicy tidbits of work can be found...

As for payment and notice you will need to read your contract to see what that says, as a contractor you have no other entitlement.


Boo

[Jessica@WhiteFieldTax]

Brighter side of life

As others have said, its contracting / self employment, take it on the chin. Sometimes the reasons are irrational, and you don't get to the bottom of them. Thats life.

The small bright glimmer, is to keep a note of this and refer to it if you ever get a IR35 investigation: its good evidence of business risk and non disguised employment.

[Incognito]

Isn't this confirming the point that notice periods are effectively irrelevant?

That will all depend on the wording of your contract, but to say that MOO means you have no notice is wrong.

If your contract is vague on the description on what you do, then it could be argued that you are being provided work each day when you turn up. If what you have done is finished then there is no MOO on the employer to give you work to do, hence yes then your argument could stand that effectively there is no notice period.

However, my argument was more on the SoW basis, if you have been contracted to do something, i.e. design an AD forest (with a weeks notice) and half way through that they terminate you, then they have breached that contract, i.e. you were brought in to do a specific piece of work (design the AD forest), it is an express term of that contract that a weeks notice would be provided. However, if you were contracted to do the AD forest in 45 days and you finished it in 30, then the employer is under no obligation to request you to do something else, i.e. Migrate Exchange mailboxes and you are under no obligation to accept it.

As per QDOS

A self employed person will do the work he is being contracted to do and will finish with no expectation of further work.

And Bauer and Cottrell

In the same way if someone is contracted to work on a specific project that finishes early but the engager is then obliged to find further work then there is MOO

If you are contracted to work on a specific piece of work and they terminate you early ignoring any notice period you had, then that's breach of contract.

I have a SoW currently, I have 90 days effort included in that. There is a notice period. Is there a mutual obligation? Absolutely, I do the work, they pay me. Does that mean MOO? No, as the 'irreducible minimum' could be present in either a contract of service or a contract for services.

[captainham]

Also found a recent thread on here about this very topic:

http://forums.contractoruk.com/busin...ally-mean.html

I think it's inconclusive as it all comes down to contract wording.

[Incognito]

Compare how your contract looks to the contract that these chaps had:

Following the decision to considerably reduce the number of permanently employed terminal operatives at Tower Wharf you were informed that there would be the requirement for casual employees on days and at times to be specified. We are delighted therefore that at the time you took voluntary redundancy, you informed us of your willingness to be considered for casual employment, but there is a requirement for us to point out the following :

The services you are to provide the company are on an ad hoc and casual basis. This means that while the company will try to give you as much notice as possible when offering work, there is no obligation on the part of the company to provide such work nor for you to accept any work so offered.
....
It is important that you understand and accept the conditions under which casual employment is being offered and we therefore require from you your acknowledgement on the copy of this letter before such employment can begin

Stevedoring & Haulage Services Ltd v Fuller & Ors [2001] EWCA Civ 651 (9 May 2001)

That is a clear case of you having no right to be guaranteed work tomorrow.

[captainham]

Your understanding on MOO is wrong. MOO does not mean that you can turn up the next day and not be guaranteed any work. You have signed a contract, if that contract is for 30 days then you will have to provide 30 days effort and they must accept 30 days effort. MOO means that at the end of that 30 days the other party has no obligation to provide you any more work.

That is why you have a notice period inserted in your contract, if either party did want to end the contract early they have a way of doing so.

Not sure I agree with that (but happy to be corrected ).

The whole point of MOO is that work doesn't have to be offered; a notice period just says "we are ending the contract" but if there is no work to do during that notice period, then it's effectively an immediate notice period.

I read your posts but missed anything that explained this one way or the other. I have just found this one:

PCG link

"The length of notice period should not be seen as an indicator of mutuality of obligations. Once notice has been given and served and the engagement has ended, there can be no mutuality of obligations. Mutuality is created within the engagement itself and so you could have an engagement where there was no right of the contractor to terminate and must see through the engagement period to conclusion, but if there is no obligation on the engager to offer work during the contract period and/or the contractor has the right to refuse to accept work that is offered during the contract period, then there would be no mutuality of obligations and the notice period would be irrelevant."

Isn't this confirming the point that notice periods are effectively irrelevant?

[Incognito]

Notice period is near on irrelevant for us. You will have a Mutuality of Obligation that says they are not under obligation to offer you work so you don't get paid. You could have a 10 year notice period but if they give you no work it is the same as immediate termination anyway.

Your understanding on MOO is wrong. MOO does not mean that you can turn up the next day and not be guaranteed any work. You have signed a contract, if that contract is for 30 days then you will have to provide 30 days effort and they must accept 30 days effort. MOO means that at the end of that 30 days the other party has no obligation to provide you any more work.

That is why you have a notice period inserted in your contract, if either party did want to end the contract early they have a way of doing so.

Read here and here for more details.

It also sounds like there is some misconduct in their eyes so immediate termination can be used.

That is what they will most likely argue. To the OP, you may have a claim for breach of contract, but I can't comment further without knowing your particular details. It may be worth speaking to a solicitor for an hour and getting his advice on the strength of your claim.

[northernladuk]

Sounds to me like the main issue here is communication and not being up-front with the client about your intended actions. When you first became aware of the childcare issues, first thing should have been a conversation with the client and discuss how you can work around it via the use of a substitute - get their approval.

As for the 1 missed phone call that just sounds like it was thrown in as extra justification for the termination, I think it was the unauthorised substitution/subcontracting that caused the problem - as NLUK said, you've discussed confidential client details with an 'unknown' third party without their approval. (Even if they know the contractor, he still wasn't authorised to work with/for you).

As for the notice period, as others have said this is just contracting, it hurts when it happens but there is nothing you can do about it. Legally there will be plenty of ways they can justify their decision so the chances of you forcing an extra cash out of them are zero, so the only thing to do is take it on the chin and move on.

Good post Willapp.

[Willapp]

Sounds to me like the main issue here is communication and not being up-front with the client about your intended actions. When you first became aware of the childcare issues, first thing should have been a conversation with the client and discuss how you can work around it via the use of a substitute - get their approval.

As for the 1 missed phone call that just sounds like it was thrown in as extra justification for the termination, I think it was the unauthorised substitution/subcontracting that caused the problem - as NLUK said, you've discussed confidential client details with an 'unknown' third party without their approval. (Even if they know the contractor, he still wasn't authorised to work with/for you).

As for the notice period, as others have said this is just contracting, it hurts when it happens but there is nothing you can do about it. Legally there will be plenty of ways they can justify their decision so the chances of you forcing an extra cash out of them are zero, so the only thing to do is take it on the chin and move on.

[northernladuk]

I am still convinced this is subcontracting not substitution as I am sure you contract says you must introduce the substitute to the client but anyway.... Doing anything with clients data and solutions that they don't know about is a bad idea period. Helpful or not this is a customers information and not to be used as I see fit. First and foremost are confidentiality trust and respect for your client. Being helpful comes a poor second I am afraid.

Notice period is near on irrelevant for us. You will have a Mutuality of Obligation that says they are not under obligation to offer you work so you don't get paid. You could have a 10 year notice period but if they give you no work it is the same as immediate termination anyway. It also sounds like there is some misconduct in their eyes so immediate termination can be used.

I can imagine it smarts like bloody hell, but the only option I can see is get your contract back. The notice period thing is dead in the water.

Notice is for permies. If you get it lovely, if you don't that is life. That is how I see it. Remember it is a double edged sword though