Reply to: Beware Performance Clause

[backgetyou]

Written warning?!?! Good luck.

Why on earth should there be this "discipline procedure" for a contractor? you get a builder on site to do some work for you, he screws up, he is GONE - you don't sit him down for a little chat about his performance do you?

It depends on his contract (again), if you employ a builder to build an extension and sack him on day 2, even if your contract is on T&M you may still have to pay him a set period. Its really down to the contract and what you sign, if the contract says you have to pay him a min of six weeks then you have to pay him this amount or he can claim. You could argue negligence, breach of contract or one of the services laws but thats what a contract is for - an agreement between two parties to specify something.

If the builder has no contract (Sole Trader) then you can dismiss him straight away but this is because the two parties did not specify anything beyond I will pay you £x for y.

[backgetyou]

I thought that expecting to be paid when the client and agency tell you that there is no work for you to do was exactly mutuality of obligation - an expectation to be paid as an employee would be.

This is the exact point in around about way. The obligation as a permie would be to pay them if you have no work, you cannot sack them for it, you can only make them redundant if the post has gone. You are obliged to keep them on. If you use a contract you are tied to the conditions. Pointers to IR35 can be seen within a contract but they are pointers. If your contract HAS a notice period then if you enforce it you have not created any further MOO as the term was explicit anyway.

I think it depends on how you work and what you earn. If you earn £1k a week and have one weeks notice then its £1k. If you earn £1k a day and you have 3 months notice then its quite a bit more. I do a lot of work that is short term but is agreed, I will book one day here one day there but it makes up my week. If the work is taken away then at least minute then I am still paid as would any tradesman (unless I can rebook the time elsewhere). I get a lot of my work direct and I am always paid for days agreed. If I have to use an agency then I make sure the contract reflects my terms and this includes some form of notice esp if the contract has outgoings such as flat rental etc.

[TheFaQQer]

Afternoon, Bear!



A rare foray outside of TPD this afternoon. Get the TPD fire burning and the drinks on, I'll be in in a minute.....

[Bear]

No it would not imply MOO/inside IR35 its just a contract which would be the same as any other contract. If the terms of the contract deem for instance that you are only paid on completion of project work and you complete and its not paid then you would pursue this as it formed part of the contract. By chasing it you indicate no MOO just that a debt is owed.

Agreed in this instance - but in reality how many contractors have this sort of arrangement

I thought that expecting to be paid when the client and agency tell you that there is no work for you to do was exactly mutuality of obligation - an expectation to be paid as an employee would be.

It is - assuming you are on a daily/hourly rate.

[TheFaQQer]

No it would not imply MOO/inside IR35 its just a contract which would be the same as any other contract. If the terms of the contract deem for instance that you are only paid on completion of project work and you complete and its not paid then you would pursue this as it formed part of the contract. By chasing it you indicate no MOO just that a debt is owed.

IR35 is a complex subject, I was investigated myself for a year (not just IR35)and ended up owing nothing as I had confirmed but it did get very complex. A single contract plays only a minor part of any IR35 investigation.

I thought that expecting to be paid when the client and agency tell you that there is no work for you to do was exactly mutuality of obligation - an expectation to be paid as an employee would be.

[WindyAnna]

I would suggest anyone with a performance clause has it changed to include written warnings or it can be abused like this.

Written warning?!?! Good luck.

Why on earth should there be this "discipline procedure" for a contractor? you get a builder on site to do some work for you, he screws up, he is GONE - you don't sit him down for a little chat about his performance do you?

[HYpno27]

Hey Backgetyou welcome to the harsh realities of contracting and this forum

[RandyW]

I have just been speaking to a contractor that handed in his notice and was then removed from site. Turns out the client asked the Agency if they had to keep him on as they did not think he would work his two weeks productivley. The contract had a clause that said the contract could be terminated in writing if performance was an issue. The end client promptly terminated the contract. The whole story points to the fact that the agency offer no protection to contractors.

I would suggest anyone with a performance clause has it changed to include written warnings or it can be abused like this. It would good if ContractorUK covered this type of issue and exposed agencies that operate in this manner.

They all work like that you numpty.

[Dark Black]

I have just been speaking to a contractor that handed in his notice and was then removed from site. Turns out the client asked the Agency if they had to keep him on as they did not think he would work his two weeks productivley. The contract had a clause that said the contract could be terminated in writing if performance was an issue. The end client promptly terminated the contract. The whole story points to the fact that the agency offer no protection to contractors.

I would suggest anyone with a performance clause has it changed to include written warnings or it can be abused like this. It would good if ContractorUK covered this type of issue and exposed agencies that operate in this manner.

Permie....

[backgetyou]

A contract is exactly that a contract. From comments here it seems that many consider their contract gives them no protection. A contract will protect you by the terms within otherwise why bother signing one/having contracts? I myself have never had any contract issues but then I have the terms modified such that I agree with them and that they comply with my working practice. I have had to pursue debts that and again this is common as a contractor particually if your work is at the upper end or the rate scale and esp. when you are only paid on project completion.

Over the last ten-fifteen years the contract market has changed drastically, I see so many contractors moaning that they are 'real' contractors and that the market is now full with disguised employees, or too many paper MCSE's (or whatever accred you wish to choose) or too many immigrants. There is always some reason they are not doing so well. There is so much work in IT that no contractor should ever be out of work or considering going permie unless they find a role with a company that they feel it time to hang up the boots. I prefer the fact I work less and less and still earn more than I ever would as a permie.

Any established contractor would never worry about where the next role comes from as once established investments made would cover any period out of work and once you have enough contacts you dont need to worry as work will come to you.

[backgetyou]

Even if that wasn't there, I'm sure they could say that there was no work for him to do, and therefore he shouldn't bother coming in. If you try and get the money, then that implies a MOO and inside IR35...

No it would not imply MOO/inside IR35 its just a contract which would be the same as any other contract. If the terms of the contract deem for instance that you are only paid on completion of project work and you complete and its not paid then you would pursue this as it formed part of the contract. By chasing it you indicate no MOO just that a debt is owed.

IR35 is a complex subject, I was investigated myself for a year (not just IR35)and ended up owing nothing as I had confirmed but it did get very complex. A single contract plays only a minor part of any IR35 investigation.

[DimPrawn]

I have just been speaking to a contractor that handed in his notice and was then removed from site. Turns out the client asked the Agency if they had to keep him on as they did not think he would work his two weeks productivley. The contract had a clause that said the contract could be terminated in writing if performance was an issue. The end client promptly terminated the contract. The whole story points to the fact that the agency offer no protection to contractors.

I would suggest anyone with a performance clause has it changed to include written warnings or it can be abused like this. It would good if ContractorUK covered this type of issue and exposed agencies that operate in this manner.

Where did they find you?

[Bluebird]

All these "disguised employees" should piss off back to permie-land. Typically they i) expect to be treated like permies and ii) are usually not good enough at their job.

I suspect (ii) drives (i) as they are permanently worried about where the next contract is coming from.

Merry Christmas.

perhaps you should have said "bah humbug" rather then merry christmas.

but then again I agree....

[Crossroads]

All these "disguised employees" should piss off back to permie-land. Typically they i) expect to be treated like permies and ii) are usually not good enough at their job.

I suspect (ii) drives (i) as they are permanently worried about where the next contract is coming from.

Merry Christmas.

[TheFaQQer]

Even if that wasn't there, I'm sure they could say that there was no work for him to do, and therefore he shouldn't bother coming in. If you try and get the money, then that implies a MOO and inside IR35...