Reply to: Am I Screwed? Early Contract Termination

[Fresh Air]

IANAL.

The Schedule part of the contract sets out the specific details for the assignment. If the hierarchy is not mentioned in the contract, I think it can be argued that the Schedule takes precedence. Your email exchange provides sufficient proof for the intention of the parties at the time of agreement. I dont see a legal problem with you terminating the contract early.

Be prepared and dont be surprised if the client terminates the contract immediately using another part of the T&C.

It would be understandable if they did, but despite wishing to finish the contract early Id like not to leave too sour a taste in the mouth - before I get flamed, obviously I cant expect smiles, hugs and handhshakes!

[contractoralan]

Yes, there is a clause that incorporates the Schedule into the 'Entire Agreement'.....

20 Entire Agreement
20.1 This Agreement along with the Schedule and the covering letter, constitutes the entire understanding between the parties concerning the subject matter hereof.

(The cover letter has no information relevant to termination or notice).

There are no clauses within the contract which set out a hierarchy in the event of conflict.

I also have an email from the initial negotioation stage that requests the '4 weeks notice by each party' be included in the Schedule.....

"....I would require that two (2) amendments/clarifications be included in the contract:-

(1) Schedule - as per previous comment, Notice Period to be '4 Weeks by each party'. (this is to enforce that each party must give this notice period)...."

IANAL.

The Schedule part of the contract sets out the specific details for the assignment. If the hierarchy is not mentioned in the contract, I think it can be argued that the Schedule takes precedence. Your email exchange provides sufficient proof for the intention of the parties at the time of agreement. I dont see a legal problem with you terminating the contract early.

Be prepared and dont be surprised if the client terminates the contract immediately using another part of the T&C.

[BrilloPad]

What is the general consensus for me terminating the contract early with the 4 weeks notice (I have no issue with providing the client or agent with this? Yay or Nay?

Yay.

Why not add a poll?

IANAL

[d000hg]

A good rep will get you out of IR35 if you have a genuine RoS clause. Permies can't substitute, you possibly can, ergo you are not an employee, ergo no IR35.

You can put any old guff in a contract especially if you supply it and they sign it without caring much. Or if it's an old mate and you say "we need these clauses to avoid a load of tax, they're just a formality" and they agree.

[downsouth]

why not speak to them about handing your 'notice' in

mention nothing about being around for 4 weeks, let them tell you what the 'notice period' is/if any

often the case they will require you offsite asap

[Fresh Air]

*Bump*

I would be interested to hear what any other out there have to say?

[Fresh Air]

Without reading the agreement in it's entirety it it difficult to be certain but usually the assignment schedule forms part of the agreement to ensure it's provisions have force. There'll usually be provision in the terms and conditions that will state this explicitly. The one wrinkle is that there'll also often be provision in the terms and conditions that sets out the hierarchy, for example that the terms and conditions have priority in case of conflict. This may be needed where the agency's or client's lawyers produce the terms and conditions, the agency's consultant or client's line manager writes the schedule and they wouldn't want the schedule to modify something important. If there is such a hierarchy set out, what's in the terms and conditions about termination will probably stand if it conflicts with the schedule. If the terms and conditions are silent, what is in the schedule will carry. Depending on circumstances, there might be hook outs to the agency/client's terms of business which, if there is, you'd want to have read. Sometimes, communications after the contract is incorporated can modify things as well.

Yes, there is a clause that incorporates the Schedule into the 'Entire Agreement'.....

20 Entire Agreement
20.1 This Agreement along with the Schedule and the covering letter, constitutes the entire understanding between the parties concerning the subject matter hereof.

(The cover letter has no information relevant to termination or notice).

There are no clauses within the contract which set out a hierarchy in the event of conflict.

I also have an email from the initial negotioation stage that requests the '4 weeks notice by each party' be included in the Schedule.....

"....I would require that two (2) amendments/clarifications be included in the contract:-

(1) Schedule - as per previous comment, Notice Period to be '4 Weeks by each party'. (this is to enforce that each party must give this notice period)...."

[SueEllen]

Indeed but the RoS not only needs to be written but may be exercised - in reality, in my situation at least, I highly doubt RoS would be permitted, but like I say that's a whole different thread.

If you want out try to do a RoS if it's in your contract.

The client may then get rid of you solving a problem.

[PSK]

Without reading the agreement in it's entirety it it difficult to be certain but usually the assignment schedule forms part of the agreement to ensure it's provisions have force. There'll usually be provision in the terms and conditions that will state this explicitly. The one wrinkle is that there'll also often be provision in the terms and conditions that sets out the hierarchy, for example that the terms and conditions have priority in case of conflict. This may be needed where the agency's or client's lawyers produce the terms and conditions, the agency's consultant or client's line manager writes the schedule and they wouldn't want the schedule to modify something important. If there is such a hierarchy set out, what's in the terms and conditions about termination will probably stand if it conflicts with the schedule. If the terms and conditions are silent, what is in the schedule will carry. Depending on circumstances, there might be hook outs to the agency/client's terms of business which, if there is, you'd want to have read. Sometimes, communications after the contract is incorporated can modify things as well.

[Fresh Air]

A good rep will get you out of IR35 if you have a genuine RoS clause. Permies can't substitute, you possibly can, ergo you are not an employee, ergo no IR35. On the ohther hand, having a notice period of four weeks implies they potetnially have to pay you for four weeks when there is no work to be done. Which rather screws Mutuality, if you think about. Or there's D&C, and the chances of yuo making a lodss on the contract by their early cancellation, for example. Nobody with any wit volunteers to pay IR35 unless they really a pretend employee.

But hey. it's your money.

However, I missed the "4 weeks by each party". Which means you can give four weeks notice, just like it says. Is that a problem?

Thanks Malvolio.

My main concern is that there is no specific clause within the contract that states that I can terminate the contract (Agreement Term clause text in first post), BUT the contract Schedule mentions a 'Notice Period = 4 weeks be each party'.

I guess what I'm really trying to establish is that can I issue 4 weeks notice even though there is no mention of being able to terminate in the agreements' clauses?

I have no issue/problem at all with providing both the agent and client with 4 weeks notice.

[malvolio]

Indeed but the RoS not only needs to be written but may be exercised - in reality, in my situation at least, I highly doubt RoS would be permitted, but like I say that's a whole different thread.

The Schedule states 'Notice Period : 4 weeks by each party' and lists the 'consultancy' and 'employment business' as those parties encompassed by the 'agreement'. What specifically leads you to the conclusion that I don't have the right to terminate?

A good rep will get you out of IR35 if you have a genuine RoS clause. Permies can't substitute, you possibly can, ergo you are not an employee, ergo no IR35. On the ohther hand, having a notice period of four weeks implies they potetnially have to pay you for four weeks when there is no work to be done. Which rather screws Mutuality, if you think about. Or there's D&C, and the chances of yuo making a lodss on the contract by their early cancellation, for example. Nobody with any wit volunteers to pay IR35 unless they really a pretend employee.

But hey. it's your money.

However, I missed the "4 weeks by each party". Which means you can give four weeks notice, just like it says. Is that a problem?

[Fresh Air]

No, it's rather germane to this one. Either you have an RoS or you don't. If you do, IR35 doesn't really apply and you've been paying 20% more tax than you need to for the last five months.

However, it looks like you don't have a right to terminate. So you'd better think of how you are going to negotiate an exit. Or, just a silly thought, complete the job you've been contracted to complete.

Indeed but the RoS not only needs to be written but may be exercised - in reality, in my situation at least, I highly doubt RoS would be permitted, but like I say that's a whole different thread.

The Schedule states 'Notice Period : 4 weeks by each party' and lists the 'consultancy' and 'employment business' as those parties encompassed by the 'agreement'. What specifically leads you to the conclusion that I don't have the right to terminate?

[malvolio]

I think my uncertainty is due to there not being an explicit clause that states that the 'employment business' and 'consultancy' may give notice as detailed in the schedule.

In reality, whilst the contract does include a right of substitution, I doubt it could or would be permitted to be exercised......I class myself as within IR35....but thats a whole other threasd!

No, it's rather germane to this one. Either you have an RoS or you don't. If you do, IR35 doesn't really apply and you've been paying 20% more tax than you need to for the last five months.

However, it looks like you don't have a right to terminate. So you'd better think of how you are going to negotiate an exit. Or, just a silly thought, complete the job you've been contracted to complete.

[escapeUK]

In reality, whilst the contract does include a right of substitution, I doubt it could or would be permitted to be exercised......I class myself as within IR35....but thats a whole other threasd!

Someone has to pay all the taxes for the socialist BS.

[Fresh Air]

Haven't you kinda already answered your question?

If you read your contract it should also have a right of substitution in it. Why not use that instead?

I think my uncertainty is due to there not being an explicit clause that states that the 'employment business' and 'consultancy' may give notice as detailed in the schedule.

In reality, whilst the contract does include a right of substitution, I doubt it could or would be permitted to be exercised......I class myself as within IR35....but thats a whole other threasd!