Reply to: End user via a software company gig. Slippery terms?

[NotAllThere]

Do the dunning, take advice on further action but be very prepared to just let it go when you've exhausted free options.

Definitely. There's a non-zero chance they'll blink first and cough up to prevent it going legal. It's not in their interests either. In fact, once the free options are openyoun might try slowly going legal. But you have to decide at what point it just isn't worth it and hope they reach that point first.

[northernladuk]

Google dunning (lots on this site about it too)

Totally this. Always the first step but this generally only works when the agent knows they are withholding money they know is not theirs. People that breach with outstanding invoices and the agent keeps it in lieu of the money they believe they are owed for breach for example. They are clearly acting improperly. For a case where the agency AND the client don't believe they have to pay and it's clearly set out in the contract then this isn't likely to work. The next step would be legal action which never happens as it's costly and time consuming with the possibility of losing. Do the dunning, take advice on further action but be very prepared to just let it go when you've exhausted free options.

[ladymuck]

I might be getting ahead of myself here but I thought I'd ask anyway. Has anyone ever had to throw the book and threaten legal action to get invoices fully paid up. I'm going to be bloody invoicing all the days I can on the contract but I suspect they're going to come back and say blah blah we can't pay for this not a billable day blah blah. At which point I might consider giving them 14 days to settle after lapsing on and invoice and then look to push out a letter before claim afterwards.

Any general guidance here?

Google dunning (lots on this site about it too)

[ApeShape]

I might be getting ahead of myself here but I thought I'd ask anyway. Has anyone ever had to throw the book and threaten legal action to get invoices fully paid up. I'm going to be bloody invoicing all the days I can on the contract but I suspect they're going to come back and say blah blah we can't pay for this not a billable day blah blah. At which point I might consider giving them 14 days to settle after lapsing on and invoice and then look to push out a letter before claim afterwards.

Any general guidance here?

[eek]

Update on this, as per the suggestions I definitely want out. It's becoming clear this is a bit of a sham.

On my contract it basically says this is a 5 day per week assignment, and shall be billed as such by the Consultant. Not a end-client hasn't got anything to do so only four days this week - it's clear that approach is a breach of the contract.

Would you be invoicing for the full five days ? I presume yes. Obviously they're going to push back. Is it worth throwing the book and going legal on this? If so how should I approach this.

You asked this 2 weeks ago - I would be invoicing 5 days and if there was any pushback I would have resigned on the spot.

[quackhandle]

F**k you, pay me.

https://vimeo.com/22053820

qh

[northernladuk]

On my contract it basically says this is a 5 day per week assignment, and shall be billed as such by the Consultant. Not a end-client hasn't got anything to do so only four days this week - it's clear that approach is a breach of the contract.

So you need to look in to the details. Are you outside? What does the contract say? All our contracts say mon - fri, 40 hour or something that indicates full time yet futher in to the contract it says you only get paid upon reciept of a signed timesheet. So you are contracted for 5 days but only get paid for the work you do. We work to a T&M materials contract. If work is only delivered for four days we can only bill four days whatever the contract says about full time.

If they've got that in then it's not breach. There maybe complexities about what you were promised and all that but you'd need to go legal for it to matter.

Would you be invoicing for the full five days ? I presume yes. Obviously they're going to push back. Is it worth throwing the book and going legal on this? If so how should I approach this.

Depends on the contract. If you have clearly not done a days work and the pay when done work clause is in then no you wouldn't. If you contract doesn't have that and says you will be contracted for five days work period then bill it. Fat chance you'll get paid if you didn't work and it will have to go legal.

Check the contract. If there is a clause making it T&M then I guess you could try billing but it's a waste of your time as it's in black and white you aren't owed it. If there is nothing about T&M and it is indeed gauranteed payment for five days then of course yes you bill it but expect the crap to start flying and prepare yourself to either fight it or back down.

It does get more complex if you are doing bits n bats of work counting up to four days spread out over five. If you made yourself available for a day and ended up only attending one meeting in your eyes thats a day (or at least 1/2) work. In their eyes it won't be so another fight starts.

Getting out sounds to be the best option here.

[ApeShape]

Update on this, as per the suggestions I definitely want out. It's becoming clear this is a bit of a sham.

On my contract it basically says this is a 5 day per week assignment, and shall be billed as such by the Consultant. Not a end-client hasn't got anything to do so only four days this week - it's clear that approach is a breach of the contract.

Would you be invoicing for the full five days ? I presume yes. Obviously they're going to push back. Is it worth throwing the book and going legal on this? If so how should I approach this.

[LondonManc]

If the contract doesn't prohibit you working for other clients then there is nothing stopping you finding another gig anyway.

Correct.

@OP - is your current contract inside or outside IR35?

Not sure I'd even tell the client I'd got another contract. Sounds like a place you wouldn't want to go back to so burning bridges shouldn't be difficult.

[northernladuk]

The software house's argument that the lack of Mutual Obligation means they don't need to pay you for days you are available would I suspect make it very hard to argue for a court to enforce that.

In reality all I'm seeing is an incompetent account manager who should be being way more forceful with the end client.

I still don't believe that is MoO. When he's in contract he has certain obligations to the contract. There is some legal speil about different levels of obligation but it's there. MoO tends to be about doing work above and beyond the original obligations of the contract. T&M is the process the house is using, not MoO.

It's a very grey area I understand so with a right legal team you could argue it how you want but looking at Jensal Software Vs HMRC it clearly focuses on work inbetween the contracts.

n this case the hirer had a series of short contracts with an IT professional. However, mutuality of obligation did not exist because the contractor was engaged under separate, short contracts; there was no obligation to provide work between contracts; there was no continuing obligation on the hirer to provide contracts; and the contractor could not demand further work.

I believe, and this is pure theory because no one in their right mind will test in court. If the software house wants to give work to the OP during the month notice then the OP is obliged to do it as per the contract else he will be in breach so I think it's binding. Will they hold him to it in reality? No, will they buggery. They argue a bit and he leaves early. We've seen this time and time again. Even if he just downs tools and buggers off with clear breach there won't be much comeback.

[DaveB]

Oh gawd, one month notice period on the contract....Post IR35 changes I wonder how enforceable this actually is.

If the contract doesn't prohibit you working for other clients then there is nothing stopping you finding another gig anyway.

[eek]

Legally it's totally enforceable if they want to. In reality you negotiate your way out.

The software house's argument that the lack of Mutual Obligation means they don't need to pay you for days you are available would I suspect make it very hard to argue for a court to enforce that.

In reality all I'm seeing is an incompetent account manager who should be being way more forceful with the end client.

[northernladuk]

Oh gawd, one month notice period on the contract....Post IR35 changes I wonder how enforceable this actually is.

Legally it's totally enforceable if they want to. In reality you negotiate your way out.

[ApeShape]

Oh gawd, one month notice period on the contract....Post IR35 changes I wonder how enforceable this actually is.

[ApeShape]

As I suspected. I'll follow through - thanks