Client and Agency did not respect notice period, should I sue them?

[northernladuk]

Let me summarise....

You have to do the work you are contracted to do.

You only get paid for that work, provided you can prove you have done it (like a signed timesheet).

But the client doesn't have to offer you work. That is unrelated to any contractual duration.

Notice periods for us are a figment of the agency's mind. In reality they actually have no value.

Thanks for that. I got lost in the detail and rambled so that's spot on.

[malvolio]

Firstly drop the 'sue' word. No one ever sues anyone else. In your case it's contractual obligations and breach which in 99.99 times out of 100 is sorted through negotiation. A little tip, people that talk about sue'ing others makes it blinding obvious they don't know what they are doing. You threaten to sue an agent and they'll know you are clueless and play you like an idiot.

Secondly, you still haven't grasped what I said. The difference between notice and work. They can give you notice and the contract will run until that notice ends. It is in no way linked to the work you do in that notice period which is T&M. They don't offer you work, you don't do it. It's the same for bank holidays, xmas, furloughs etc. You are off for a day because the client isn't offering you work on that day. No different to them not offering you work when the contract is in the notice period.

You are in a client/supplier relationship which is not equal. One has a requirement and the other delivers and there are certain obligations on each party which are different. I'll explain when pointing out the other two posts below.





NAT IMO is right but for the wrong reasons but Perfects Storms comment is completely wrong.

Mutuality of Obligation has nothing to do with getting paid for work. Mutuality of Obligation (or lack thereof) is about the expectation to be given work AFTER the assignment or contracted SoW has completed for contractors. You actually have an obligation to do the work you've contracted to.

There are actually obligations within a contract. One is the obligation for each party to do something, outlined in the clauses. The client is obliged to pay for the work done and the contractor is obliged to do the work given. So again, forget notice period. The notice can run on the contract and is not connected to work done. So they can give notice and on day 5 of the notice then can with draw the work. You are STILL in contract, just not doing any work.

A comment above states it goes both ways, which it doesn't. You are obliged to carry out work given by the client. So no, you can't really serve notice and then become unavailable. You will be in breach of contract and because the client could usual demonstrate financial loss you could be on the hook for it. Unavailability is an agreement between you and the client to have some time off your obligation to do work provided. If they offer you work and you refuse to do it you are in breach.

It's very unfair being a contractor. Who should I sue?

I am absolutely sure some of our more learned posters will pick a ton of holes in the above but I'm sure the concepts are right. Notice period and work done are not linked, Client/Supplier relationships are not equal, MoO is not about carrying work out you've agreed to and there are obligations within a contract.

Let me summarise....

You have to do the work you are contracted to do.

You only get paid for that work, provided you can prove you have done it (like a signed timesheet).

But the client doesn't have to offer you work. That is unrelated to any contractual duration.

Notice periods for us are a figment of the agency's mind. In reality they actually have no value.

[northernladuk]

So basically they can sue/not pay me if I do not respect their notice period but nothing happens when opposite?

Firstly drop the 'sue' word. No one ever sues anyone else. In your case it's contractual obligations and breach which in 99.99 times out of 100 is sorted through negotiation. A little tip, people that talk about sue'ing others makes it blinding obvious they don't know what they are doing. You threaten to sue an agent and they'll know you are clueless and play you like an idiot.

Secondly, you still haven't grasped what I said. The difference between notice and work. They can give you notice and the contract will run until that notice ends. It is in no way linked to the work you do in that notice period which is T&M. They don't offer you work, you don't do it. It's the same for bank holidays, xmas, furloughs etc. You are off for a day because the client isn't offering you work on that day. No different to them not offering you work when the contract is in the notice period.

You are in a client/supplier relationship which is not equal. One has a requirement and the other delivers and there are certain obligations on each party which are different. I'll explain when pointing out the other two posts below.

Correct. There is lack of mutuality of obligation.

In theory the lack of mutuality goes both ways - you could serve notice and also be 'not available' to work that time, save for a handover.

NAT IMO is right but for the wrong reasons but Perfects Storms comment is completely wrong.

Mutuality of Obligation has nothing to do with getting paid for work. Mutuality of Obligation (or lack thereof) is about the expectation to be given work AFTER the assignment or contracted SoW has completed for contractors. You actually have an obligation to do the work you've contracted to.

There are actually obligations within a contract. One is the obligation for each party to do something, outlined in the clauses. The client is obliged to pay for the work done and the contractor is obliged to do the work given. So again, forget notice period. The notice can run on the contract and is not connected to work done. So they can give notice and on day 5 of the notice then can with draw the work. You are STILL in contract, just not doing any work.

A comment above states it goes both ways, which it doesn't. You are obliged to carry out work given by the client. So no, you can't really serve notice and then become unavailable. You will be in breach of contract and because the client could usual demonstrate financial loss you could be on the hook for it. Unavailability is an agreement between you and the client to have some time off your obligation to do work provided. If they offer you work and you refuse to do it you are in breach.

It's very unfair being a contractor. Who should I sue?

I am absolutely sure some of our more learned posters will pick a ton of holes in the above but I'm sure the concepts are right. Notice period and work done are not linked, Client/Supplier relationships are not equal, MoO is not about carrying work out you've agreed to and there are obligations within a contract.

[rocktronAMP]

In theory the lack of mutuality goes both ways - you could serve notice and also be 'not available' to work that time, save for a handover.

Let me throw another bone into this dog pen please.

The duration of this role is 9 months initial and offers remote working with occasional travel to **ATLANTIS**. The rate agreed for the position above is £765.4321 per day on a 7 day non-reciprocal notice period, (i.e. if you are successful, you will not be able to give any notice to **FOO FIGHTERS** unless in exceptional circumstances)..

This is for an umbrella Inside IR35 contract, I said "Yes" and I sent my CV down yesterday, because it was worth a punt, but what do you think to this disclaimer? (of course, I'm protecting the innocent here, IMF style)

Essentially, this is a ball and chain, I couldn't suddenly quit mid-contract working with **DAVE GROHL** at all except for bereavement, illness or force de majeur. Oh yeah. I should have also said this is for a Technical Team Lead position.

[PerfectStorm]

In theory the lack of obligation goes both ways (after all, it's mutual!) - you could serve notice and also be 'not available' to work that time, save for a handover.

[NotAllThere]

So basically they can sue/not pay me if I do not respect their notice period but nothing happens when opposite?

Correct. There is lack of mutuality of obligation.

[bul]

Joking aside...

Yeah maybe I did not understand what are the obligations/consequences of a notice period, in fact this is the first time this happened.

So basically they can sue/not pay me if I do not respect their notice period but nothing happens when opposite?

Another problem here is... That law you've stated specifically mentions employee and employer.

So what would had happened if instead of an agency I use an Umbrella company? then I guess the tem employee applies in this case.

But yeah I got it: I am not an employee and I am giving a service therefore no work no pay.

Thanks anyways

[northernladuk]

Hope you don't mind me saying but your posting history is very strange. Loads of different countries, Dubai LTDs, off shore companies, living in Jersey. It's pretty amazing that you've dabbled in extremely complex situations yet failed to understand the basics of what you do and a standard contract.

[northernladuk]

Dunno about Dutch law. Maybe you should try ContractorNL?

Joking aside I can't see how the contracts are going to be much different. Time and materials is T&M wherever you are. Now you appear to be missing the bit that's in your contract. There is a white space and nothing from your contract but.. in a vast majority of UK contracts you get paid for the work you do. That's kinda what T&M is. It will generally say something about you will get paid upon reciept of a signed timesheet. Now if you are given no work, you cannot submit a timesheet so you will not get paid. So effective dismissal.

People often confuse contract termination with T&M, which is exactly what you've done. You've been asked not to work, but as I say, the contract is ongoing. It hasn't been terminated. They can give you 1 days notice or they can give you 100 to terminate that contract but how many days you actually work and get paid for are not linked. You get me? So the actual situation you have is they terminated your contract which would end after the 25 day notice period but you were not given any work in that period so no pay.

Another problem here is... That law you've stated specifically mentions employee and employer. If you are a contractor then are not and employee and the people paying you is not the employer. It's a T&M client/supplier with you so totally irrelevant. The basis of that law is that an employee would have been paid for the days they couldn't work so they've lost out and have a case. This is not true for you as you are on T&M so there is no right to money you didn't do work for.

The main problem here is you don't understand what you do properly and you didn't read and understand your contract. You get paid per day that you work. Period. Nothing else to it. You can't prove loss for work you didn't do as you didn't lose it. You need to spend a bit of time understand who you are, what you do and who you work for.

Caveat, this is all based on UK experience but I am pretty sure it's going to be the same in any country where T&M contracts exist..

[bul]

Hi guys, a while a go I was woking on a contract for a Dutch client thru Dutch agency, there were some technical discrepancies and the client decided to terminate my contract and stop working 3 days after, 5 days after the DUTCH agency sent me a formal contract cessation.

Now I am claiming the 25 days notice period has not been respected, so I am entitled to 25 days of payments, their answer was: "We are not going to pay because
there is no timesheet signed by your client, you did not worked those 25 days"

My contract states:



Also Dutch laws states:

From https://business.gov.nl/regulation/notice-period/

Compensation


Failure by the employer to give the correct notice period may result in having to pay compensation (in Dutch) to your employee. This compensation will amount to what your employee would have earned had the regular notice period been applied. In that case, the compensation amounts to at least 1 month's salary.

Questions are:

1. Am I really entitled to 25 days of payment?
2. Is it worth to fight in this situations? I mean sue them (agency of course)
3. What are the initial costs if I decide to sue them?
4. Any online web law firm you recommend for this issues?