Reply to: Contract / legal advice needed urgently please

[BlasterBates]

This is not worth fighting. Companies don't have to justify sacking contractors or indeed new employees.

It is tough obviously being your first contract.

Just get back and try again.

The market is not generally good anyway with lots of contractors getting canned and rate cuts. So don't take it personally.

If you can't get anything suitable then go permie. The permie situation is a lot easier at the moment.

One of the reasons for the rather poor market is the increasing trend to offshoring rather than using contractors, particularly the main large companies. There will always be contracting opportunities for some specialised niches.

[TheFaQQer]

Ltd - this is what I am starting to realise though, I was told to set up as either ltd or umbrella a year ago - but the contracts involved more closely resemble employment as I can not send a substitute (have to be accredited to do the job) the client dictates my hours and there is a dependency on the client to get trained on the relevant systems and procedures in order to do the job, so I can see how that differs to IT contractors. so for HMRC purposes I am director of my own company & self employed but for all other intents an purposes I am treated like an employee (but without the holidays etc lol)

Could you send a substitute if they were accredited? As long as the client cannot reasonably restrict the substitute, then you'd still be OK.

Client dictating hours does not necessarily imply direction and control - for example if the building is only open from certain times, then everyone needs to abide by the same rules. Therefore HMRC cannot infer that you are an employee since there is no differentiation between how the client treats employees and contractors.

Just because you need specific training on client tools doesn't mean that you are an employee either - if they treat everyone the same, then there is no differentiating factor.

I think the biggest thing in favour of any IR35 defence is that you have been terminated with immediate notice without being given a reason - I doubt they could do that to an employee, and therefore helps your defence.

[SpontaneousOrder]

I really need to look into this further & see post above about my status.

It is possible that the training you originally mentioned means something other than what I thought it did. Training on systems is fine. Training on how to do your job isn't.

[TheCyclingProgrammer]

Ltd - this is what I am starting to realise though, I was told to set up as either ltd or umbrella a year ago - but the contracts involved more closely resemble employment as I can not send a substitute (have to be accredited to do the job) the client dictates my hours and there is a dependency on the client to get trained on the relevant systems and procedures in order to do the job, so I can see how that differs to IT contractors. so for HMRC purposes I am director of my own company & self employed but for all other intents an purposes I am treated like an employee (but without the holidays etc lol)

Just to be clear...you know what IR35 is don't you? As it sounds like you are completely caught. I assume you make sure all your earnings get paid to you as salary and not dividends? For HMRC purposes, you're a "disguised employee" and need to pay tax accordingly.

[salsagirl]

Would you really be making a year's income in only 6 months seeing as you're well inside IR35 by the sounds of it?

I really need to look into this further & see post above about my status.

[salsagirl]

We're you working via a Ltd, a brolly or on the agency payroll?

Ltd - this is what I am starting to realise though, I was told to set up as either ltd or umbrella a year ago - but the contracts involved more closely resemble employment as I can not send a substitute (have to be accredited to do the job) the client dictates my hours and there is a dependency on the client to get trained on the relevant systems and procedures in order to do the job, so I can see how that differs to IT contractors. so for HMRC purposes I am director of my own company & self employed but for all other intents an purposes I am treated like an employee (but without the holidays etc lol)

[SpontaneousOrder]

I've only been there for 5 weeks, and I have had an interview in that time so I suppose I could leave it off and just say I was looking for work.

Suppose I am looking for re-assurance, I'm sure I'm not the first to be terminated through no fault of my own and I won't be the last, just worried about my future prospects, I don't need to earn contract wages but is it wrong to say I want to !! lol I have a family & would rather work 6 months of the year for the same pay as a year - I suppose I'll just have to accept that these things happen and in 2 years time it will just be a blip on the landscape.

Just really irks me though that you can be hardworking, conscientious and all that stuff and you can be blamed / lose your income for someone else's incompetency's and theres diddly squat you can do about it - life isn't fair though, I guess I will just have to toughen up.

Would you really be making a year's income in only 6 months seeing as you're well inside IR35 by the sounds of it?

[speling bee]

I've only been there for 5 weeks, and I have had an interview in that time so I suppose I could leave it off and just say I was looking for work.

Suppose I am looking for re-assurance, I'm sure I'm not the first to be terminated through no fault of my own and I won't be the last, just worried about my future prospects, I don't need to earn contract wages but is it wrong to say I want to !! lol I have a family & would rather work 6 months of the year for the same pay as a year - I suppose I'll just have to accept that these things happen and in 2 years time it will just be a blip on the landscape.

Just really irks me though that you can be hardworking, conscientious and all that stuff and you can be blamed / lose your income for someone else's incompetency's and theres diddly squat you can do about it - life isn't fair though, I guess I will just have to toughen up.

We're you working via a Ltd, a brolly or on the agency payroll?

[jmo21]

I have recently been terminated from a contract - reason cited was unsuitable for the role.

The industry standard for assessing suitability is clear, a period of training, followed by QC feedback on each piece of work which enables you to learn and achieve competence, then the expected amount of QC passes in a row to achieve competence.
Despite having these procedures in place the company did not in any way follow them to assess my suitability & I was unable to complete accreditation before termination and therefore be accurately assessed on my suitability. I did not do anything wrong that would result in instant termination.

So you are inexperienced and expecting to be trained?

That is not typical of the type of contractors you will find here, it sounds like a kind of "pre-permie offer" temporary contract, so your expectations may well have been that of a permanent employee while working under a temp contract.

Time to move on though.

[salsagirl]

How to address it in the future depends on the industry and how long you have been contracting with this client.

Assuming you aren't in an industry where you have to account for every day of your life, if you haven't been there very long, then I would skip it off the CV completely.

If you've been there a while, then put on the CV what you did, as you would for any role. If you are asked why you left the role, then be honest - "there was no more work for me to do with the client".

I've only been there for 5 weeks, and I have had an interview in that time so I suppose I could leave it off and just say I was looking for work.

Suppose I am looking for re-assurance, I'm sure I'm not the first to be terminated through no fault of my own and I won't be the last, just worried about my future prospects, I don't need to earn contract wages but is it wrong to say I want to !! lol I have a family & would rather work 6 months of the year for the same pay as a year - I suppose I'll just have to accept that these things happen and in 2 years time it will just be a blip on the landscape.

Just really irks me though that you can be hardworking, conscientious and all that stuff and you can be blamed / lose your income for someone else's incompetency's and theres diddly squat you can do about it - life isn't fair though, I guess I will just have to toughen up.

[TheFaQQer]

I know it may seem naïve but this is only my 2nd contract & I am quite honestly shell shocked how unprofessionally it has all come about and also a bit worried about what I put on my CV and say when I go for other contracts.

How to address it in the future depends on the industry and how long you have been contracting with this client.

Assuming you aren't in an industry where you have to account for every day of your life, if you haven't been there very long, then I would skip it off the CV completely.

If you've been there a while, then put on the CV what you did, as you would for any role. If you are asked why you left the role, then be honest - "there was no more work for me to do with the client".

[salsagirl]

It would be helpful to know what your industry is. We are mostly IT contractors and this looks a bit different in terms of 10 days notice to improve etc.

sorry I meant to say I am in financial services

[speling bee]

Thanks all for your prompt replies - I'm realising that I am inexperienced in contract matters and also that I tend to wear rose coloured glasses - I'm sure that will get knocked out of me!!

There are two clauses in my contract that relate to early termination with no notice, as I haven't got it in front of me this is the general gist.
clause 1 relates to being unsuitable and being given 10 days notice to improve - I wouldn't have minded so much if they had quoted this one & I had been given 10 days to improve.

the 2nd relates to - receiving information about being unsuitable and that relevant enquiries should be made to ascertain suitability. - I would imagine that this would relate more to someone telling them that I had a criminal record and that they would have to verify that information before dismissal BUT I suppose they could evoke that clause to cover all sorts of eventualities. This is the clause quoted in my termination.

My argument is that my suitability was not assessed by the internal processes normally used & my ops manager was negligent in his duty to put relevant procedures in place to provide QC feedback, as was given for other colleagues, starting on the same day in a slightly different role & just seemed to be a matter of opinion in my case. Incidentally another person was terminated at the same time for the same reasons.

I know it may seem naïve but this is only my 2nd contract & I am quite honestly shell shocked how unprofessionally it has all come about and also a bit worried about what I put on my CV and say when I go for other contracts.

You all seem to have a wealth of experience so I look forward to any other advice.

It would be helpful to know what your industry is. We are mostly IT contractors and this looks a bit different in terms of 10 days notice to improve etc.

[salsagirl]

Thanks all for your prompt replies - I'm realising that I am inexperienced in contract matters and also that I tend to wear rose coloured glasses - I'm sure that will get knocked out of me!!

There are two clauses in my contract that relate to early termination with no notice, as I haven't got it in front of me this is the general gist.
clause 1 relates to being unsuitable and being given 10 days notice to improve - I wouldn't have minded so much if they had quoted this one & I had been given 10 days to improve.

the 2nd relates to - receiving information about being unsuitable and that relevant enquiries should be made to ascertain suitability. - I would imagine that this would relate more to someone telling them that I had a criminal record and that they would have to verify that information before dismissal BUT I suppose they could evoke that clause to cover all sorts of eventualities. This is the clause quoted in my termination.

My argument is that my suitability was not assessed by the internal processes normally used & my ops manager was negligent in his duty to put relevant procedures in place to provide QC feedback, as was given for other colleagues, starting on the same day in a slightly different role & just seemed to be a matter of opinion in my case. Incidentally another person was terminated at the same time for the same reasons.

I know it may seem naïve but this is only my 2nd contract & I am quite honestly shell shocked how unprofessionally it has all come about and also a bit worried about what I put on my CV and say when I go for other contracts.

You all seem to have a wealth of experience so I look forward to any other advice.

[speling bee]

Have you tried the PCG legal help line if you are a member? Also, many insurance policies add on a legal helpline, so check there if you haven't checked already.



Is there anything in the contract which states how suitability will be assessed? Is there anything in the contract which means that they can terminate (for example some contracts I've had said things like "if the client is unsatisfied")?


If there is nothing in the contract which states how suitability will be assessed, then this is a moot point.


Evidently, someone thinks that you did.


What does the contract say about the rights of the agency to terminate the contract? You'll need to read it carefully to determine whether they have breached the contract or not.


Duty of care is tort law, not statute. I don't see how you could claim this, though, since it generally requires some degree of negligence on the part of one party against the other. Just because they have terminated the contract doesn't mean that they did so negligently.

To be honest, I think you're best to chalk it up to experience, update the CV and get it out there. Unless the contract has been breached, in which case you should invoice for the notice period and pursue a claim for the money.

Sound advice. Of course, it may be worth invoicing for the notice period anyway, and then start adding interest penalties etc. just for the fun.