Reply to: No notice option for contractor

[LondonManc]

That's exactly why I asked the question ... the potential 'untenable' aspect.

Cross that bridge when you come to it. A whole variety of untenable reasons may crop up. If you're accepting the contract on the basis that the rate and location are acceptable, then complete the contract as sold to you but make sure that the contract is very, very clear about the deliverables. Behave like a microconsultancy and anything that they ask you to do outside of the scope of the deliverables is work that you shouldn't do but should offer to quote for. If they push back on this, then they've engaged you as a disguised permie rather than a contractor and it's your first step into the world of IR35 red flags. Raise it on here and see if anyone else has hit what you do - that aside, get in there and get working and invoicing!

[simes]

What on earth is that supposed to mean?

God this is hard work...!

[northernladuk]

It's a lot simpler in the USA, surprisingly. The 13th amendment clears it all up. If you can find an equivalent that is valid in the UK, that's your loophole.
I've had a quick google and there's no sign of test cases or precedents for no notice "escapes" like there is for MoO e.g. Nethermere (St Neots) v Gardiner and Taverna, so it would be a gamble as to which way it falls. That said, why would you enter a contract looking to bail? I'd only want out of a contract if it became untenable - pushing me inside IR35 compared to what was discussed, work drying up, impossible conditions/targets, etc.

This and if it turns in to that you negotiate your way out to the satisfaction of all parties. All these comments about pulling MoO, not turning up, breaching etc is all a little bit daft really. Negotiation is key.

[shedges76]

I'd only want out of a contract if it became untenable - pushing me inside IR35 compared to what was discussed, work drying up, impossible conditions/targets, etc.

That's exactly why I asked the question ... the potential 'untenable' aspect.

[LondonManc]

It's a lot simpler in the USA, surprisingly. The 13th amendment clears it all up. If you can find an equivalent that is valid in the UK, that's your loophole.
I've had a quick google and there's no sign of test cases or precedents for no notice "escapes" like there is for MoO e.g. Nethermere (St Neots) v Gardiner and Taverna, so it would be a gamble as to which way it falls. That said, why would you enter a contract looking to bail? I'd only want out of a contract if it became untenable - pushing me inside IR35 compared to what was discussed, work drying up, impossible conditions/targets, etc.

[Lance]

I think you've got MoO wrong. MoO is beyond the piece of work you are doing. It's too complex for someone like me to properly understand and explain but whilst in contract there are obligations in place. The obligation to give and accept work is once the work in the agreement is complete. So no, I don't belive you can't use MoO to get out of a contract.

That may be true.
Then again I'd use my IPSE cover if I got a legal letter after 'breaching' a contract and let them choose the best method.

Either way, IMO, no ability for the contractor to terminate is a naive clause, provided by the agency, with very little legal validity.
Best for the contractor to not agree to it, but if left with no choice (benchtime) I'd not lose sleep.

[northernladuk]

Not sure why this is such a big deal.
If I cannot ‘give notice of termination’ but for whatever reason need to stop working it’s simple. There is no mutuality of obligation for me to work so I don’t. Sure as tulip termination of the contract will follow very shortly.
Not professional, but not a breach of contract either.

I think you've got MoO wrong. MoO is beyond the piece of work you are doing. It's too complex for someone like me to properly understand and explain but whilst in contract there are obligations in place. The obligation to give and accept work is once the work in the agreement is complete. So no, I don't belive you can't use MoO to get out of a contract.

[Lance]

Fair enough, although I'm sure you can see why I have my doubts as to the level of business risk you'd be taking doing that, whereas if you'd put yourself in a better contractual position to begin with... (I wouldn't mind being proved wrong as frankly I feel a right PITA requesting these sort of changes pre-contract).

I particularly like your point on slavery but nonetheless, I'm not sure a judge would agree it's relevant as the agent isn't forcing you to work for them, merely suing your business for their (potentially trumped up) losses relating to your business failing to honour a signed contract.

I'm glad you'd chase for work done, I would too - I don't see how failure to provide consultancy services tomorrow (particularly as it would be for good reason) means they can or should get today and yesterday's work for free.

Thanks for answering.

I’ve been in court. Not as a contractor mind. The judge reads the contract and judges based on that.
You’re right that it’s not good to sign a contract where one party cannot terminate. It fails for all parties... for example, if the contractor dies, is the agency really going to sue the company? They can try, but to little avail.
Getting legal makes good TV, but not much business sense ( unless you’re in the USA maybe).

[man]

TLDR.
I’d simply tell the agent I wasn’t available for the foreseeable.

If they push the legal button then I’d invoke said clause via my lawyers.....

SLAVERY IS ILLEGAL. Nobody can force you to work and the clauses they try and handcuff you with are almost always useless.

And no. I wouldn’t expect to get outstanding monies, but I’d still chase them. This is business.

Fair enough, although I'm sure you can see why I have my doubts as to the level of business risk you'd be taking doing that, whereas if you'd put yourself in a better contractual position to begin with... (I wouldn't mind being proved wrong as frankly I feel a right PITA requesting these sort of changes pre-contract).

I particularly like your point on slavery but nonetheless, I'm not sure a judge would agree it's relevant as the agent isn't forcing you to work for them, merely suing your business for their (potentially trumped up) losses relating to your business failing to honour a signed contract.

I'm glad you'd chase for work done, I would too - I don't see how failure to provide consultancy services tomorrow (particularly as it would be for good reason) means they can or should get today and yesterday's work for free.

Thanks for answering.

[shedges76]

Think I'll just stay where I am. ... Barclays doesn't sound great anyway.

[Lance]

OK, so I've just grabbed the appropriate clause from a random contract I've previously signed, and redacted as appropriate - here's the MOO clause:
"X.X no party wishes to create or imply any mutuality of obligation between themselves either in the course of, or between any performance of, the Services or during any notice period; accordingly, neither <REDACTED> nor the Client is obliged to offer any work to the Consulting Company or the Consultant, nor is the Consulting Company or the Consultant obliged to provide services to <REDACTED> or the Client beyond the termination or expiry of this Agreement;"

So if you had no right of termination, you would send an email to the agent something like:

"Dear Agent,

Under the 'mutuality of obligation' clause X.X, MyCo will be not be providing any further Services as detailed in our contract (signed <DATE1>) to <REDACTED> or Client as of tomorrow <DATE2>.

Blah blah.

Yours sincerely,
man at MyCo"

Quite aside from the obvious stunned silence from all parties concerned and probable fun and games to get any monies owed, you would not be worried about any possible comeback from this? Serious question.

TLDR.
I’d simply tell the agent I wasn’t available for the foreseeable.

If they push the legal button then I’d invoke said clause via my lawyers.....

SLAVERY IS ILLEGAL. Nobody can force you to work and the clauses they try and handcuff you with are almost always useless.

And no. I wouldn’t expect to get outstanding monies, but I’d still chase them. This is business.

[man]

No. But that’s not ROS you’re describing.

Perhaps you've confused me with someone else? I didn't describe ROS. I was merely providing support to the view that people buy into other people rather than a faceless service, even at the serious £££ levels.

[man]

If it’s in my contract then yes. That’s why I have a contract.

OK, so I've just grabbed the appropriate clause from a random contract I've previously signed, and redacted as appropriate - here's the MOO clause:
"X.X no party wishes to create or imply any mutuality of obligation between themselves either in the course of, or between any performance of, the Services or during any notice period; accordingly, neither <REDACTED> nor the Client is obliged to offer any work to the Consulting Company or the Consultant, nor is the Consulting Company or the Consultant obliged to provide services to <REDACTED> or the Client beyond the termination or expiry of this Agreement;"

So if you had no right of termination, you would send an email to the agent something like:

"Dear Agent,

Under the 'mutuality of obligation' clause X.X, MyCo will be not be providing any further Services as detailed in our contract (signed <DATE1>) to <REDACTED> or Client as of tomorrow <DATE2>.

Blah blah.

Yours sincerely,
man at MyCo"

Quite aside from the obvious stunned silence from all parties concerned and probable fun and games to get any monies owed, you would not be worried about any possible comeback from this? Serious question.

[Lance]

. Would you really sign a serious money contract with a company who you've never even spoken to anyone from?

No. But that’s not ROS you’re describing.

[Lance]

How so? I'm struggling to think of any way of wording "I'm not coming in tomorrow" that wouldn't sound like a contract breach. Would you really just point at the MOO clause and not expect a possible sueball?

If it’s in my contract then yes. That’s why I have a contract.