Reply to: Notice period and contract termination

[Ignis Fatuus]

Depends what you signed up for. If you agreed to do anything thrown your way for any project, then no, you can't contractually refuse. But that is precisely why the JLJ case was lost; you have to be contracted to deliver an agreed schedule of work items or you lose the D&C arguement.

Separate question, separate reply:

What about a contract that is generally speaking in the nature of support? It may not specify dates and milestones, but it still doesn't mean that you agreed to do anything thrown your way; you agreed (say) to provide a certain service for a certain period, not just to do whatever they want. OTOH it probably won't have milestones and dates, except for the contract end date.

[Ignis Fatuus]

Depends what you signed up for. If you agreed to do anything thrown your way for any project, then no, you can't contractually refuse. But that is precisely why the JLJ case was lost; you have to be contracted to deliver an agreed schedule of work items or you lose the D&C arguement.

Yes, but all I meant was that if the contract itself specifies work, and you haven't completed it yet, then you do have to accept it. Or more precisely, you already have accepted it, so you gave to finish it, and only then are you free to go.

[malvolio]

PMFJI but I seem to read this phrase here more and more, "you don't have to accept any work that is offered and the client doesn't have to provide it". But is it not so that if the contract specifies work and you signed it, then you have already accepted to perform that work? So you are not generally free to refuse work and do nothing or even spend your days elsewhere?

Depends what you signed up for. If you agreed to do anything thrown your way for any project, then no, you can't contractually refuse. But that is precisely why the JLJ case was lost; you have to be contracted to deliver an agreed schedule of work items or you lose the D&C arguement.

[Ignis Fatuus]

Notice periods are a (moot) point as you don't have to accept any work that is offered and the client doesn't have to provide it.

So the client can give you notice as per the contract, and provide you with no more work from that period onwards.

Or in your case you can just refuse to do the work offered for the length of the contract which will probably annoy the client enough to terminate you.

You can regard this as "unprofessional" but legally both parties are allowed to act like this as there is no mutuality of obligation on either party.

PMFJI but I seem to read this phrase here more and more, "you don't have to accept any work that is offered and the client doesn't have to provide it". But is it not so that if the contract specifies work and you signed it, then you have already accepted to perform that work? So you are not generally free to refuse work and do nothing or even spend your days elsewhere?

[TheFaQQer]

Notice periods are a mute point as you don't have to accept any work that is offered and the client doesn't have to provide it.

moot

[SueEllen]

I do not think we should advocate unbalanced contracts where either party can behave unprofessionally by not respecting the notice period stated in the contract. And it does not matter if you are permie or contractor in this regard.

Notice periods are a mute point as you don't have to accept any work that is offered and the client doesn't have to provide it.

So the client can give you notice as per the contract, and provide you with no more work from that period onwards.

Or in your case you can just refuse to do the work offered for the length of the contract which will probably annoy the client enough to terminate you.

You can regard this as "unprofessional" but legally both parties are allowed to act like this as there is no mutuality of obligation on either party.

[SussexSeagull]

I presume you are referring to permanent staff being made redundant?

If so they won't necessarily want to get rid of contractors as they might be doing work permanent people can't do. Certainly in my permanent days we had some redundancies and contractors were kept on for a while.

[malvolio]

But it is because I am a service provider that I want to have the terms of the contract as favorable to me as possible. If there is an 1 month notice period for either party and the client wants to get rid of me then I have one month to find another contract. This makes commercial sense to me. On the other hand, if I want to get out of the contract for whatever reason then I can give my notice and the client can replace me without much impact to the project.

Not saying you shouldn't press for one if you feel you need it. Personally (but like many others), I regard notice on our side as a nice to have and notice from the client as a complete myth, and act accordingly.

I do not think we should advocate unbalanced contracts where either party...

Long standing advice form PCG's advisors is that the best IR35 option is sensible notice from the client and none from YourCo. Since that is commercially a little dangerous, the best compromise is short notice from them and long notice from you. Equal periods are a strong pointer towars there being an undesirable level of Mutuality

...can behave unprofessionally by not respecting the notice period stated in the contract.

Go look up how many threads there are on here where a contractor is taking precisely that position and wants to know how to "escape" a binding contract.

And it does not matter if you are permie or contractor in this regard.

Actually it matters a hell of a lot. You don't have the same legal obligation to be given mutual notice as an employee. The only rights you have are the ones you agree to in the contract.

[achilles]

Same notice period as the client? Why? You are providing the service, not the client. He wants his work completed and you out of the way when you're no longer needed. You're not a permanent part of his establihement, you are temporary resource, there to deliver what's been agreed and not wander off in the middle because you got bored. By all means have a sensible notice period if you think you might want to bail early for any reason, but you could also simply negotiate an early end or offer to send a subbie. Certainly you have no commercial jusitfication for demanding parity with the client; you get one to suit your requirement, he gets one to suit his. There's no reason at all they have to be equal.

And the idea you might voluntarily want to stop mid-flight is permie thinking. You're not a permie, you're a service provider. Think like one.

But it is because I am a service provider that I want to have the terms of the contract as favorable to me as possible. If there is an 1 month notice period for either party and the client wants to get rid of me then I have one month to find another contract. This makes commercial sense to me. On the other hand, if I want to get out of the contract for whatever reason then I can give my notice and the client can replace me without much impact to the project.

I do not think we should advocate unbalanced contracts where either party can behave unprofessionally by not respecting the notice period stated in the contract. And it does not matter if you are permie or contractor in this regard.

[malvolio]

I disagree. A contractor should insist on having the same notice period as the client. And it does have a practical value. If a client wants to get rid of you early although you have fulfilled your obligations they will always give the notice stated in the contract. I have never come across a reputable client who behaved differently.

Same notice period as the client? Why? You are providing the service, not the client. He wants his work completed and you out of the way when you're no longer needed. You're not a permanent part of his establihement, you are temporary resource, there to deliver what's been agreed and not wander off in the middle because you got bored. By all means have a sensible notice period if you think you might want to bail early for any reason, but you could also simply negotiate an early end or offer to send a subbie. Certainly you have no commercial jusitfication for demanding parity with the client; you get one to suit your requirement, he gets one to suit his. There's no reason at all they have to be equal.

And the idea you might voluntarily want to stop mid-flight is permie thinking. You're not a permie, you're a service provider. Think like one.

[achilles]

So if we're agreed that they are of no practical value, how about we all agree that the best option is therefore one month from the client and none from you. That way, you have a useful addition to your IR35 defence portfolio, which does have a value.

I disagree. A contractor should insist on having the same notice period as the client. And it does have a practical value. If a client wants to get rid of you early although you have fulfilled your obligations they will always give the notice stated in the contract. I have never come across a reputable client who behaved differently.

[Freamon]

A client finding you something to do between projects will not help you IR35 at all. That project doens't appear and you end up doing random stuff the client asks you for a few months = very bad. Permies and hidden resources do that. If I was in that situation I would ask that the client lets me go for a short time to keep IR35 situation in place IMO.

Sounds about right to me. I've come across a fair few who are on their 3rd-4th project with the same client, and have been "kept busy" during the gaps, so I guess they can only hope they never get full discoveried.

[northernladuk]

In my experience this only occurs (from a practical point of view) when the client wants to retain the contractor for the next project which is kicking off in a few weeks. The client will usually then find you something to keep busy between projects.

In that situation, if you think it would go down well, it might be worth offering to take some of the quiet period off. Not sure if this might also help with IR35 as you could argue that when there was no work, you weren't being paid.

A client finding you something to do between projects will not help you IR35 at all. That project doens't appear and you end up doing random stuff the client asks you for a few months = very bad. Permies and hidden resources do that. If I was in that situation I would ask that the client lets me go for a short time to keep IR35 situation in place IMO.

[Freamon]

Notice doesn't impy there is no work. Notice can be timed with the end of the work. If the work finishes early MOO is exercised and you don't get paid when there is no work. This is totally acceptable surely and from my experience is the norm. Clients not honouring notice and paying for doing no work is much rarer and should be taken as exceptional cases surely?

In my experience this only occurs (from a practical point of view) when the client wants to retain the contractor for the next project which is kicking off in a few weeks. The client will usually then find you something to keep busy between projects.

In that situation, if you think it would go down well, it might be worth offering to take some of the quiet period off. Not sure if this might also help with IR35 as you could argue that when there was no work, you weren't being paid.

[northernladuk]

<stuff>
Where it goes wrong is when a contractor is binned with no or very little notice and insists on being paid for the notice period, which is contractually correct but suicide for IR35 and highly likely to tee off the client.

What I'm saying is that contractors should not expect to be paid for any non-working time, and that includes notice periods.

Certainly have no argument with the way that is put at all.