Reply to: Can anyone recommend a lawyer? Contract changed due to implicit excuse

[Lance]

Apologies if it's a little late to be bumping this thread, but I am a little shocked at reading these responses!

A notice period is a real thing, otherwise it wouldn't be in the contract.

Yes it is a real thing. It is notice of termination.
It is not notice to contine paying even if no work is done.
I provdie notice of termination of the contract. If that's one month, it means that in one month the contract is terminated. If I work in that month I get paid, if I don't then I don't get paid. It's that simple.

However, a notice period and termination clause cannot be taken outside the context of the wider contract. So in your case it might be different when you got the lawyer to look at it. We'll never know unless you share the entire contract and the lawyer's findings.

Often clients' will pay even if they don;t have to. A) because they feel a sense of duty, and B) they don't always know they don;t have to.
When you got paid I can guarantee that the agency were paid. They're not a charity.


I've never been left without pay during a notice period. That in itself is purely anecdotal and doesn't reflect any legal rights (or wrongs).

[erdo]

at which point it really was pointless to take it to court.

Still, I have enormously enjoyed resending my unpaid invoice over the years - every time a new employee at that agency contacts me about their fantastic new contracting opportunity. I think about 5 years after, they finally took me off their database

[erdo]

Apologies if it's a little late to be bumping this thread, but I am a little shocked at reading these responses!

A notice period is a real thing, otherwise it wouldn't be in the contract.

In the 10 years I've been contracting I've always insisted on an equal notice period for the agency and myself (on the odd occasion that the recruiter has tried some 1 month for me / 1 week for them nonsense).

Out of maybe 15 engagements in that time, 3 clients have tried to play silly buggers and not pay part of the notice period when they decided to abruptly end the project. I simply said I would be invoicing in lieu of the notice period that wasn't given (based on my daily rate). Two times the agencies paid it - no idea if the end clients ended up paying or not.

The one that didn't, it was because a junior employee had volunteered to the end client on my behalf that I would be happy to receive half the notice period money (one weeks pay) if that meant I didn't have to go into the office for the two weeks.

The lawyer I contacted read the contract and told me they were in repudiatory breach by terminating the contract without notice (the day they told everyone to pack up and go to the pub) and I could sue for the loss (regular independent contractor agreement) - when you sue for loss, it is your responsibility to attempt to mitigate those damages and as it happened I found another contract within a week that was paid £10 a day less thus mitigating those damages to £50, at which point it really was pointless to take it to court - I think the break even point for taking it to small claims court with their assistance was going to be around £2000.

[LondonManc]

The other thing to remember here is that the agent, as empathetic as they may seem (gutted for you, etc.) are more concerned about retaining the client than the candidate. The client has the money after all.

[Lance]

Look at your contract with the agency under "Notices"

The standard form is "All legal notices under this contract shall be in writing..."

- "in writing" includes by email - this is defined in the terms at the start of the contract.
- "shall be given" means, in the case of email, the date the email is sent by you or them - this is also defined in the terms at the start of the contract.
- "All legal notices" means your actual written notice ie an email to your company address

"Dear contractor, go away now, this constitutes your Notice as per the Notice section of your contract and as per the period (ie 1 month) specified in the contract's Assignment Schedule [the page attached to the main contract with all the important stuff in like rate and hours and notice period],
and
As per [this other section] of our contract, our client has said he doesn't want you on site working, your contract states [in this section] you only get paid if you work, so because there is no work and you are not allowed on our client's site, go away now please, here's the money we owe you for the work you did, we're not giving you any money for work our client doesn't want you to do."

"All legal notices" also means any variation to the terms of the contract or schedule.

One party to your contract, the agency, has proposed, verbally, to change a term contained in the Assignment Schedule.

All notices shall be in writing.


Email to the agency:

"I refer to [Notice section] of the contract we agreed on [date on the contract]

[quote it precisely as written - "all notices shall be... in writing"]

We note you proposed in our telephone conversation of [precise dates & times & person you spoke to etc] to vary the terms of the contract and/or assignment schedule from [notice period old] to [notice period proposed].


Then something like - given the urgency of the situation and the potential impact of the other much more important stuff we agreed to in our contract ie the whole point of this is supplying services to the end client, please clarify, yours etc.


Don't use any emotional language in any communication from now on whatsoever to anyone. Pretend you are up in court being cross-examined by Mr Bastard from Bastard & Partners LLP as to why you said the things you said.

The shorter the better - whoever gets it will hopefully think "this is one for the boss not me" and immediately forward it to someone who will know that any court will decide you are right and they are wrong, on the evidence (ie - the actual words in the contract & assignment schedule which were signed and agreed to by both parties, not the alleged words in alleged telephone conversations with numpty agents).


The end result will be the same, you will still only get the one day's notice and one day at the agreed rate, but you will be covered in case of any fallout between agency and their client, or if the agency decides to try to keep monies owed to you, for example, by claiming you breached the contract by not turning up for the notice period, even though they changed it.

Also, the Assignment's notice period applies even if you don't agree to the extension, so that means if the agency decides later to claim you didn't turn up for the one month notice period as agreed, (despite telling you not to), you have evidence that they breached the contract first, so you win any case or at least have a valid counter-claim, and your insurer will know this, and will tell the agency to pay up plus costs.

Peace of mind is the outcome required here, - one quick search in 3 years' time - oh look there's the evidence all in one email, send to insurer, done.

Good advice.
Shows an understanding the true contractual relationship, and keeps it unemotional and to the point.

However, the sort of person who does it like this is not the sort of person who'd mess it up in the first place. There's a reason why these very rarely make it to court is the fall out has already happened, and when legal advice is sought it's already too late to have any sort of case (even if it was financially worthwhile to go to court).

[VAt Collect0r]

take Notice

or worse, trying to get me to break it by keeping all this verbal. Any advice?

Look at your contract with the agency under "Notices"

The standard form is "All legal notices under this contract shall be in writing..."

- "in writing" includes by email - this is defined in the terms at the start of the contract.
- "shall be given" means, in the case of email, the date the email is sent by you or them - this is also defined in the terms at the start of the contract.
- "All legal notices" means your actual written notice ie an email to your company address

"Dear contractor, go away now, this constitutes your Notice as per the Notice section of your contract and as per the period (ie 1 month) specified in the contract's Assignment Schedule [the page attached to the main contract with all the important stuff in like rate and hours and notice period],
and
As per [this other section] of our contract, our client has said he doesn't want you on site working, your contract states [in this section] you only get paid if you work, so because there is no work and you are not allowed on our client's site, go away now please, here's the money we owe you for the work you did, we're not giving you any money for work our client doesn't want you to do."

"All legal notices" also means any variation to the terms of the contract or schedule.

One party to your contract, the agency, has proposed, verbally, to change a term contained in the Assignment Schedule.

All notices shall be in writing.


Email to the agency:

"I refer to [Notice section] of the contract we agreed on [date on the contract]

[quote it precisely as written - "all notices shall be... in writing"]

We note you proposed in our telephone conversation of [precise dates & times & person you spoke to etc] to vary the terms of the contract and/or assignment schedule from [notice period old] to [notice period proposed].


Then something like - given the urgency of the situation and the potential impact of the other much more important stuff we agreed to in our contract ie the whole point of this is supplying services to the end client, please clarify, yours etc.


Don't use any emotional language in any communication from now on whatsoever to anyone. Pretend you are up in court being cross-examined by Mr Bastard from Bastard & Partners LLP as to why you said the things you said.

The shorter the better - whoever gets it will hopefully think "this is one for the boss not me" and immediately forward it to someone who will know that any court will decide you are right and they are wrong, on the evidence (ie - the actual words in the contract & assignment schedule which were signed and agreed to by both parties, not the alleged words in alleged telephone conversations with numpty agents).


The end result will be the same, you will still only get the one day's notice and one day at the agreed rate, but you will be covered in case of any fallout between agency and their client, or if the agency decides to try to keep monies owed to you, for example, by claiming you breached the contract by not turning up for the notice period, even though they changed it.

Also, the Assignment's notice period applies even if you don't agree to the extension, so that means if the agency decides later to claim you didn't turn up for the one month notice period as agreed, (despite telling you not to), you have evidence that they breached the contract first, so you win any case or at least have a valid counter-claim, and your insurer will know this, and will tell the agency to pay up plus costs.

Peace of mind is the outcome required here, - one quick search in 3 years' time - oh look there's the evidence all in one email, send to insurer, done.

[LondonManc]

The difference here is they haven't said there is no work (it's a budget issue for them) Also my contract states specific days and hours I am meant to be there for rather than just a period of time.

If there is no budget for you, you will be working for free. Is that okay?

[man]

If you want to be paid what you really need is a very specific clause in the contract that either guarantees payment regardless of whether work is done or not or compensation in the event that the agency has no work for you.

You may be able to take legal action arguing that you were effectively an employee of the recruitment agency, though I think this wouldn't be worth the effort.

I would write it off, in future you should ensure that your contract has some sort of provision for compensation in the event of the client cancelling the agency's contract.

Just to point out that this seems unwise as payment irrespective of work completed is frequently discussed on here as an IR35 indicator and personally I think the risk from Hector (combined with the likely difficulty in getting a contract that's so deeply in your favour) outweighs the risk posed from clients that do this.

Also, you may not be aware of it but if you are an IPSE+ member you have inclusive business interruption insurance that may pay up in this sort of event (up to £1K for breach of contract) - it may soften the blow.

And as an aside, try to get something in writing (email them to confirm or whatever) if the client says verbally don't come in. It'd help a lot if there is a later dispute over whether it was you or the client who decided you weren't to come in, and your insurance will probably want it as evidence.

[Lance]

Assuming that you could get legal and win a case here are some thoughts.

A lawyer will cost at least £200 per hour. And will likely be a few thousand pounds by the time you've gone through the process.
To sue someone for a month of work you can only go through the small claims court, unless your day rate is over £500 (seems unlikely given the lack of basic grammar).

In a small claims court you cannot claim costs (that's your legal fees) so you'll lose the laywer costs. Even if you win you've not got much.
It will take a long time to resolve as well.

You could represent yourself, but if you knew enough to do that you wouldn't be asking the question you did. So I'd not recommend it.

Make a court claim for money - GOV.UK


In any case. As other have said. You'd lose.

[BlasterBates]

You can't take any legal action against the client. Your contract is with the recruitment agency.

Contractors often make this mistake, they want to sue the client, well the answer is no, the client can do whatever he wants.

You need to contact the recruitment agency. Unfortunately most contracts include a clause which basically states that the agency will only pay for work that has been signed off. If you want to be paid what you really need is a very specific clause in the contract that either guarantees payment regardless of whether work is done or not or compensation in the event that the agency has no work for you.

You may be able to take legal action arguing that you were effectively an employee of the recruitment agency, though I think this wouldn't be worth the effort.

I would write it off, in future you should ensure that your contract has some sort of provision for compensation in the event of the client cancelling the agency's contract.

[jmo21]

The difference here is they haven't said there is no work (it's a budget issue for them)

Come on, are you that daft?

There is no budget for you, therefore there is no work for you.

That doesn't mean they don't have any work to do.

[oilboil]

I am a ltd business, i fill in a time sheet to the recruiter, they invoice the company and then the recruiter pays me.

I assume in order for the recruiter to pay you, that you also fill out an invoice to request payment?

If you don't then your relationship isn't a B2B relationship you are actually a paid-consultant paid what equates to a salary - in this case you do have a potential claim against the recruiter (not the client) for not paying notice - but you would need a solicitor and a lot of patience and money - and even then no guarantees.

However any gains from the claim would be more than wiped out in the ensuing reclassification of your earnings to date as a salary and all permie taxes, deductions etc. becoming due to HMRC

As others have said - what you've described (on the termination point) is just part and parcel of our chosen livelihood's - if you can't accept that, then contracting just isn't for you

[ContractorScum]

I've been working at a big company for a couple of months via a recruitment agency, with a 1 month notice period. I am a ltd business, i fill in a time sheet to the recruiter, they invoice the company and then the recruiter pays me. The company asked if i wanted to extend my contract recently. We both agreed to extend and the recruiter has confirmed both parties signed this off and this is written.

The company have now decided they don't want to extend the contract. To get out of this they are saying it was 'implicit' (their words) that the notice period had gone from 1 month to 0 days. The extension made no reference to notice period. All this part has been verbal so far. They want me in on the first day of the contract extension but thats it. I have again had no written confirmation of this.

So where do i stand, is it worth contacting a lawyer, as in my mind they are breaking the contract or worse, trying to get me to break it by keeping all this verbal. Any advice?

Welcome to contracting

[northernladuk]

They don't give you any work then. Same thing.

Might want to watch the specific days an hours thing if you are taking something 9-5 mon to Friday. That's very permie'esque

[tigaruk]

The difference here is they haven't said there is no work (it's a budget issue for them) Also my contract states specific days and hours I am meant to be there for rather than just a period of time.