Reply to: Agency not paying final invoice

[TheFaQQer]

My understanding is that once you are 'introduced' to a client, you cannot from that point onwards opt-out.

So, if you have physically met the client, and then opted-out afterwards. Tough to them.

However, IANAL and IANAA, etc...

WHS.

Once the client can identify you (which could even be once they receive your CV), then you cannot opt out, even if you wanted to.

You must opt out, in writing, before the client knows who you are.

[Earlyflash1]

My understanding is that once you are 'introduced' to a client, you cannot from that point onwards opt-out.

So, if you have physically met the client, and then opted-out afterwards. Tough to them.

However, IANAL and IANAA, etc...

[Spikeh]

Latest update - I've issued the invoice to the agent, gave them seven days (which is over tomorrow), and even offered to waiver the interest if he paid in that time.

He's come back with a basic - "We're doing all we can, but legally you're opted-out, so we have you by the balls" response.

Just to clarify - I have an email from him confirming the interview a day before I met the client, then another email with the opt-out that I signed a day after. I started work properly the following Monday. Am I definitely opted-in? Can you not opt out whenever you want?

I will be filing a claim online this weekend if I do not receive payment by tomorrow. I just need to be sure I have a case...

Oh... I've also found out since that some other contractors have had payments witheld (some for quite a considerable amount) by the end client in the past - and I'm also aware that they're currently undergoing personnel changes and redundancies... this shouldn't affect me though, as I'm going through an agency...

[Beefy198]

Bonus!

Got get 'em!

[Spikeh]

Pretty much.

And in reference to your earlier point, if you were introduced the client - and this includes an interview - you cannot technically opt out.

If you have an e-mail with details of your interview date which clearly states a date earlier than your signed opt out then you're not opted out, simple as.... no matter how the agency try to spin it.

Yep, I have this. I'm one of those anal buggers who keeps every piece of paper and every email I've ever been sent ;P

[Beefy198]

it seems that there's absolutely no point in opting out at all?

Pretty much.

And in reference to your earlier point, if you were introduced the client - and this includes an interview - you cannot technically opt out.

If you have an e-mail with details of your interview date which clearly states a date earlier than your signed opt out then you're not opted out, simple as.... no matter how the agency try to spin it.

[Spikeh]

Just checked over some minor points - I had MET the client for an interview before I signed the opt in, but I signed it before I actually started work for them...

I was in the office for a full day the week prior to starting work. Does this constitute an opt-in? Just been reading up on the regulations, it seems that there's absolutely no point in opting out at all?

[NotAllThere]

Well, I've opted out before, but in this instance yes, I met the client before I signed the opt-out... for an interview. In fact, I didn't sign the contract till a few days after I started work. Don't shout at me
...

That's good news then, I think, You're opted in regardless. That gives you a little more leverage with the agency.

[Hex]

It sounds like you're doing the right things. It also looks to me like you are opted-in if you didn't sign the opt out until you had already been working. So you don't actually need signed timesheets.

Wait to see if your invoice to them with interest does anything. If not, then issue final reminder and then start small claims court proceedings. They'll probably settle with you before it gets anywhere near court.

If they don't pay now then I think it would be worth pointing out to them that you are opted in on your final reminder as well as telling them when you will start small claims court proceedings. If they realise you are opted in then it may just spur them on to pay.

[Spikeh]

Well, I've opted out before, but in this instance yes, I met the client before I signed the opt-out... for an interview. In fact, I didn't sign the contract till a few days after I started work. Don't shout at me

In reference to timesheets, this was how I'm working:

My Company -> Agency -> Consultancy -> Client

I was working for the client, being paid by the Agency, who were commissioned by the Consultancy. The Consultancy were responsible for signing timesheets but when I tried to get it signed, they said I should just email them through to the Agency and they would authorise it via email.

The issue here is that the work was additional days after the premature cancellation of my contract, authorised by the client via email / over the phone. I spoke to the Agency and the Consultancy, who both told me to keep a log of the days I did... both the Agency and the Consultancy have said that I'm entitled to the payment, but the Client is dilly-dallying about signing off the work order for those additional days.

I sent an invoice with interest on it last night, with a lengthy email explaining my predicament and that I would be seeking further legal advice if it isn't paid in 7 days, so I'm knee deep in it regardless. I'm also going to send the invocie by post, just to be safe.

[NotAllThere]

I just found this in the contract too:



This doesn't bode well... but we managed to work together for 2 months without a single signed timesheet? Does this nullify the contract?

That's be up to a judge to decide. In you shoes, if I had time, I'd go down small claims court route.

I'm unclear on one point though - why is the client not signing the timesheets?

You should also know that technically, if you met the client before you "opted out", you are nevertheless, opted in, and as such don't require signed timesheets.

[Spikeh]

I just found this in the contract too:

4. CONTRACTOR PAYMENT

(a) Payments will be processed by <AGENCY> as per the frequency stated in the Contractor’s Pay Schedule, provided the provisions of this document have been complied with.

(b) Prompt payment of accounts is conditional upon the receipt of timesheets/project reports that have been signed by a duly authorised representative of the Client. The Contractor expressly understands the following:

(i) <AGENCY> is under no duty to make payment for hours worked, unless it has received the relevant timesheet/project report from the Contractor, specifying those hours worked, which has been verified and signed on behalf of the Contractor.

(ii) <AGENCY> will be entitled to withhold payment from the Contractor on the basis that the relevant timesheet/project report has not been verified and countersigned by a duly authorised representative of the Client.

(c) <AGENCY> shall make payment via direct bank transfer (normally via BACS). The Contractor is therefore under a duty to ensure that <AGENCY> have been informed of the Contractor’s correct bank account details, including branch address, sort code and account number. Any change of bank account details must be immediately notified to <AGENCY> (failure to comply will result in payment being delayed until <AGENCY> recovers all monies sent to the account details previously notified by the Contractor). It is not sufficient to change bank details on invoices; <AGENCY> need specific written confirmation.

This doesn't bode well... but we managed to work together for 2 months without a single signed timesheet? Does this nullify the contract?

[Spikeh]

You could also prove you visited the customer site daily when you signed the visitors book I guess?

Do you have any email comms. to prove you were working there as well? It all adds to your case.

Good luck, not a nice position to be in.

I was not at the office, as I explained - I was working from home. I do have plenty of emails to prove I was working those days though. I put them in to a zip file and wrote a long email to the consultancy themselves explaining the predicament.... that was over 3 months ago.

The agency and the consultancy are both saying that they cannot pay me until the client signs off the days I worked.

[Hex]

Make sure you keep all those e-mails. Start adding interest to your invoices as detailed on the payontime website. That might get their attention.

[suityou01]

Well, I read my contract and it states quite a bit about timesheets, but it's also quite ambiguous. Some contract points below:


And:


However - we agreed on the phone / via email that timesheets would not be signed as the consultancy and I were both remote, which made it very difficult to get anything signed at all. I sent my timesheets via email each week and they authorised them with the consultancy over the phone.

I think its important to remember that you are a business. As such your business is owed money, not you per se. If for example you owed money on your gas bill, they would send red letters, and then put you out to a debt collection agency.

Now I' not saying you should send your invoices in red or anything, but selling the debt to a debt collection agency means you would recoup most/some of your money. This is an option for you, if you can find a debt recovery service willing to take on such a small amount and you are willing to accept less than you are owed.

If this is not the way you wish to proceed, then your only other course of action is the small claims track, as mentioned previously. What I would do is go to the county court, and pick up the forms and fill them all out. Then photocopy them in triplicate and send them to the agency (and may their client - its a judgement call on your part). A covering letter to the effect of 7 days notice before commencement of legal proceedings to cover debt for invoice number xxxxxxx, plus damages.

Once the shock and awe is in place, they may pay as they don't want to pay damages and legal costs, especially as you say this agency is a one man band. So they may settle before it gets to court. Once the seven days have elapsed then file the papers - I think it costs around £25.

I'm no lawyer, but I have been down this route a couple of times and it rarely gets to court.

Good luck, we're all rooting for you.