Reply to: No notice period allowed contract

[adestor]

Sorted.

Well, I've had the contract and working practices reviewed and its outside IR35 .
Apparently not being able to give any notice was a big plus wrt IR35.
But also the contract is based on the client not having control of when my company does the work - it's up to my company when the work is done, as long as it fits in with the project timescales.

[TheFaQQer]

It is not a question of "forcing" you to work. It is a question of taking responsibility if you f*** off mid contract. The client will reserve the right to sue you for damages if you do clear off.

I have never heard of anyone being sued.

your limited company or umbrella

[DodgyAgent]

It is not a question of "forcing" you to work. It is a question of taking responsibility if you f*** off mid contract. The client will reserve the right to sue you for damages if you do clear off.

I have never heard of anyone being sued.

[TheFaQQer]

Read a dictionary recently...?

Nope.

That said, we are actually in agreement here.

[Another Dodgy Agent]

Read a dictionary recently...?

If A must work for B, but B can get shot of A at a moment's notice, there is no mutuality. A is obliged. B isn't.

Now, on a B2B contract, IBM can be obliged to provide services for 6 months. If they fail to do this, they are in breach. BUT, if all their employees quit, then that could be force majeur. It became impossible to fulfill the contract. If you're the sole employee of the company, it could be an interesting argument.

I've said it before, and I'll say it again. If the client insists you can't have notice, use it as a negotiating tool to get a better rate.

Spot on! The problem is the majority of posters are thinking like temps and not like Ltd Co's. The no notice period is to the Ltd Co not the individual, remember you are just one of many working on site for one of your company's clients.

[Paddy]

Just been handed a contract where in the section about the amount of notice that I can give the client it says "No notice may be given". But its 2 weeks notice on their side.

Is that legal ?

Send the agent a copy of your Ltd Co T&Cs with the clause that your T&Cs overide his.

[NotAllThere]

That's the point - if you MUST work there, then you have a problem, since it implies mutuality. If you can argue that there is not mutuality, then the notice period (or lack thereof) is a moot point.

Read a dictionary recently...?

If A must work for B, but B can get shot of A at a moment's notice, there is no mutuality. A is obliged. B isn't.

Now, on a B2B contract, IBM can be obliged to provide services for 6 months. If they fail to do this, they are in breach. BUT, if all their employees quit, then that could be force majeur. It became impossible to fulfill the contract. If you're the sole employee of the company, it could be an interesting argument.

I've said it before, and I'll say it again. If the client insists you can't have notice, use it as a negotiating tool to get a better rate.

[TheFaQQer]

Is that legal ?

Yes

I have had a fair few of these - the bottom line is is that under EU law this is actually not enforcable - I cant recollect the Law but this was what I was told by a Lawyer speclaising in Employment Law.

What makes you think that it's unenforceable? Your company signs a contract that says that they must complete the work. What would be unenforceable if your company chose to break that clause?

I went through this with mine. In the end I negotiated and they agreed to change it to let me give 4 weeks notice.

I did this with current contract - on renewal I had the clause put in there so that I could give notice, which was not there in the original. Most agencies should do this without too much grief.

Tis often quoted that no notice period for the contractor strengthens the not caught IR35 position.

Yes - that's the position that I'd always taken before (there are plenty of Mal posts around here that support that view). However, when I took out the last lot of IR35 insurance from Qdos, one of the questions was whether I could give notice or not, which implied that being able to give notice was a good thing.

Of course, there are those who point out that it's mutuality of obligation that's the determining factor.

That's the point - if you MUST work there, then you have a problem, since it implies mutuality. If you can argue that there is not mutuality, then the notice period (or lack thereof) is a moot point.

[Crossroads]

I have had a fair few of these - the bottom line is is that under EU law this is actually not enforcable - I cant recollect the Law but this was what I was told by a Lawyer speclaising in Employment Law.

It's got sweet FA to do with employment. It's a B2B contract...

You get a company to refit your bathroom for £5k, over a period of two weeks. After the first week they quit, taking £2.5k and leaving you with (at best) a half finished bathroom. Would you mind?

Therefore the client is stipulating no notice period, as they require the job to be completed.

[BolshieBastard]

That's tosh. It's more likely to be caught by IR35 as it enforces an obligation for him to be available to that client come what may. Even worse than a permie who can give notice to quit. Put simply, the client can make him do any type of work, or send him home when there is no work (without pay) and at any time call him back. Effectively he is (contractually) trapped. How can that be a genuine B2B arrangement. He needs to talk to the client and come to an equitable agreement.

PS: As i said earlier, this arrangement is unenforceable. eg. I'm sure he would be 'allowed' to leave if he threatened to piss in his gaffers face.

No it does not and its a position often used in IR35 defence. Why dont you try doing some research instead of spouting bull tulip, eh?

[VectraMan]

That's tosh. It's more likely to be caught by IR35 as it enforces an obligation for him to be available to that client come what may. Even worse than a permie who can give notice to quit. Put simply, the client can make him do any type of work, or send him home when there is no work (without pay) and at any time call him back. Effectively he is (contractually) trapped.

That's the way I read it, but then the flip side argument is that being able to give notice is something employees have, something the agent in my case tried very hard to pursuade me of.

With the way things have been going with IR35 it's hard to know one way or the other how it'll be interpreted, but I think it's more of a personal question as to whether you're prepared to commit yourself to something a little unknown without a get out. I certainly wouldn't, and even in these somewhat uncertain times I was ready to turn down this contract for this reason if they hadn't agreed to the change.

Is it unenforcable? They can't force you to work, but certainly they can show they have been financially damaged by you not following the terms of agreement. I imagine what would happen in practice is the agent would not pay your final payment, citing you not giving notice as the reason, and leave it up to you to sue them.

[SueEllen]

Of course, there are those who point out that it's mutuality of obligation that's the determining factor.

btw - employment lawyer? Try a contract lawyer.

It's complicated by the fact that legally the person doing the actual work at ClientCo can leave with giving notice to their employer yourLtd as per employment law, but the company can't leave ClientCo as per contract law.

[NotAllThere]

Of course, there are those who point out that it's mutuality of obligation that's the determining factor.

btw - employment lawyer? Try a contract lawyer.

[Turion]

Tis often quoted that no notice period for the contractor strengthens the not caught IR35 position.

That's tosh. It's more likely to be caught by IR35 as it enforces an obligation for him to be available to that client come what may. Even worse than a permie who can give notice to quit. Put simply, the client can make him do any type of work, or send him home when there is no work (without pay) and at any time call him back. Effectively he is (contractually) trapped. How can that be a genuine B2B arrangement. He needs to talk to the client and come to an equitable agreement.

PS: As i said earlier, this arrangement is unenforceable. eg. I'm sure he would be 'allowed' to leave if he threatened to piss in his gaffers face.

[d000hg]

Er, but I thought slavery had been abolished?

How can you FORCE somebody to work?

(genuine question)

Because they signed a contract agreeing not to leave? When you join the armed forces aren't there equally tough rules about when you can leave? Seems fair enough to me, if they are paying enough to make it worthwhile.