Reply to: Agency not payinng

[Taita]

Depends on how the contract is written.

This is why I stated unless you see the contract you can't make statements like that. We have to presume that the OP read their contract and understands it.

In all my contracts whether temping, employment or contractor all the clauses that are linked refer to each other. In many of my contracting contracts some of these linked clauses actually contradict each other until I get them reviewed and amended. If the OP didn't get clauses that contradict each other amended and they concern notice, then it leaves it up to the judge to do that for them and the agency.

Unfortunately for many companies whether they are employers or agencies their HR and legal teams have a habit of extending clauses thinking by doing so they are making them more enforceable, when in fact a good lawyer especially a barrister would tell them do to the opposite so a judge cannot do the interpretation for them. There was a whole series of legal articles on this issue on the main page.

Sounds good but: "We have to presume that the OP read their contract and understands it. " in this forum?
AND in all your many years of contracting how many cases have you encountered where a " good lawyer" or even a bad lawyer, has been engaged by a contractor to resolve a contractual issue? At an hourly rate upwards of £300 would you (figuratively speaking) engage one to prove a point or retrieve a couple of grand, when you (figuratively speaking) are so unsure of your (figuratively speaking) position that you have to secure the moral support of casually interested fellow travellers before you act?

[SueEllen]

Your contract is with the agency. Any legal action you take will be against the agency. Companies specifically use agencies so they are not involved if there are any issues over engaging workers.

[Lancer2016]

Yes I do have the legal right to work while the Home Office goes through my case and can be proved in any courts in the UK,however as some pointed out

i)lawyers can be expensive
ii)also another thought is that since the client co is a global brand,is it worth annoying them esp since they have branches globally and that on the long term can be an opportunity for me,UK operations is only their 2nd or 3rd largest op

[northernladuk]

Can't blame agents and clients for screwing situations like this up. There are so many penalties for getting it wrong and most are just not set up to handle the complexities. Must be a nightmare for them. They can't drop the situation like a brick but don't know how to handle it when it hits.

[SueEllen]

I really don't see how arguing over the semantics of what a contract may say is going to achieve anything .

The issue here is that regardless of what the contract says, the risk adverse end client does not believe the op has the right to work.

Hence, the company is not in the position of having work for him to do (5 worked days paid notice) nor is willing to to give him 5 unworked days paid notice because they do not believe it is legal to pay him..

My guess is that unless he gets a lawyer involved nothing is going to change here.

And my second guess would be, that, that lawyer will not be cheap because no company is going to risk committing criminal act to solve a civil problem and just write a cheque. And employing someone who does not have the right to work in the uk is a criminal act.

I know it's not the thing the op wants to hear but unless he knows a very good lawyer who grasps the issues quickly this is going to cost far more to sort out than the 5 days is worth..

There is no need for an expensive lawyer as this is between the agency and contractor even though the OP may actually be using one to sort out their immigration status.

The OP clearly understands their immigration status so as long as they can prove in court:
1. S/he should be given notice by the agency and paid for it as per the agreed contract, and,
2. The Home Office gives them a right to work which covers the notice period,
then they have a case.

One unfortunate problem for all people who employ or take on workers is it is up to you to understand their legal right to work in the UK as you don't want a claim of racial discrimination made against you as not all migrants are poor and stupid. This is one reason why some businesses refuse to deal with people without an EU passport as once you get into visa territory it gets messy.

The issue the OP has is due to the time taken to chase the agency to try to get them to pay - as they need to act reasonably if they don't want their case thrown out - and the unpredictable speed of the legal process they may not be in the country to contest the case if they don't sort their immigration status out.

[northernladuk]

No further discussion on this point please. SueEllen is correct.

Wow. No more advice on contracts unless we have a copy in front of us. That's gonna be interesting.

[eek]

I really don't see how arguing over the semantics of what a contract may say is going to achieve anything .

The issue here is that regardless of what the contract says, the risk adverse end client does not believe the op has the right to work.

Hence, the company is not in the position of having work for him to do (5 worked days paid notice) nor is willing to to give him 5 unworked days paid notice because they do not believe it is legal to pay him..

My guess is that unless he gets a lawyer involved nothing is going to change here.

And my second guess would be, that, that lawyer will not be cheap because no company is going to risk committing criminal act to solve a civil problem and just write a cheque. And employing someone who does not have the right to work in the uk is a criminal act.

I know it's not the thing the op wants to hear but unless he knows a very good lawyer who grasps the issues quickly this is going to cost far more to sort out than the 5 days is worth..

[NotAllThere]

There will be a term in your contract about only getting paid upon receipt of a signed timesheet.

(My emphasis)

Not all contracts carry that term and if the OP is opted-in anyway the term is void. ...

So unless you have the OP's contract in front of you don't tell them that they have no rights to chase payment and will not be successful.

No further discussion on this point please. SueEllen is correct.

[mudskipper]

btw,I didnt opt in for this contract

So you did opt out? Unless you opt out, 'in' is the default status.

[Lancer2016]

Wow thanks for the response folks

Admin review does have 3c in it,but asking the Home Office to write a specific letter mentioning I have full working rights wont be practical as it will take about 3-4 weeks for them to rely and my contract ends next week,so in all I will lose out on 11 days pay

If I was dodgy and shady I would not have told them about my visa refusal and could have continued on as they have not chased me...but I promptly informed them about the refusal and this is what I get

btw,I didnt opt in for this contract

[northernladuk]

Why are you presuming certain wording is in the OP contract? Is it in front of you?

So you can make assertions about a legal document which differs in wording and interpretation depending on individual circumstances without seeing it?

Without seeing it? In front of me? Of course we don't see it so we have to try the best we can. A majority of our contracts have the no pay upon signed time sheet so let's start there.

[northernladuk]

Depends on how the contract is written.

Of course it does

And as we never get all the details we can only take a stab at the advice.

This is why I stated unless you see the contract you can't make statements like that. We have to presume that the OP read their contract and understands it.

No you don't as you should well know. On here you should presume exactly the opposite and work up the tree. Eventually we might get to somewhere near the truth of the situation.

[SueEllen]

Bit touchy aren't we aren't we SE. If you read what put I did refer to his contract and what the term would mean. If it's not there it won't matter, but his first step is to check. It also relates to clients not giving work. If he's worked it and he's not being paid, which I'm not 100% the situation then it won't count.so fair enough.

Why are you presuming certain wording is in the OP contract? Is it in front of you?

You shouldn't go bolding comments telling people what they can can can't say because we don't have their contracts in front of us TBH.

So you can make assertions about a legal document which differs in wording and interpretation depending on individual circumstances without seeing it?

[SueEllen]

The notice and no work no pay run in parallel though? They aren't indpenedant. You can be not working during the notice period which is the same outcome. I'd guess what happened in that case and the one SE is advocating that the client bends and pays it because it's not worth going legal.

Depends on how the contract is written.

This is why I stated unless you see the contract you can't make statements like that. We have to presume that the OP read their contract and understands it.

In all my contracts whether temping, employment or contractor all the clauses that are linked refer to each other. In many of my contracting contracts some of these linked clauses actually contradict each other until I get them reviewed and amended. If the OP didn't get clauses that contradict each other amended and they concern notice, then it leaves it up to the judge to do that for them and the agency.

Unfortunately for many companies whether they are employers or agencies their HR and legal teams have a habit of extending clauses thinking by doing so they are making them more enforceable, when in fact a good lawyer especially a barrister would tell them do to the opposite so a judge cannot do the interpretation for them. There was a whole series of legal articles on this issue on the main page.

[northernladuk]

The notice and no work no pay run in parallel though? They aren't indpenedant. You can be not working during the notice period which is the same outcome. I'd guess what happened in that case and the one SE is advocating that the client bends and pays it because it's not worth going legal.