Reply to: Regarding being replaced by a permie

[darmstadt]

Here's a question that you can't really google (pun intended),

When you're in the position where the client is looking to replace you with a permie, is the client open and honest with you and tell you that that's what they're doing, or do they do it 'behind your back' and simply give you notice when they've hired someone?

P

On the current contract they hired a guy to replace me some 18 months ago, and they were very upfront abou t it and I knew that it was going to happen eventually but after 2 extensions and a third mooted I'm still here (I think mainly because I haven't trained him or handed anything over so they're up a dark alley without a paddle until he can do what I do...) A number of contracts I've done have been to fill in the gaps until they get a permie and they say so from day 1 and it doesn't worry me in the least, luckily in my field it takes them a long time to find the right candidate and so contracts tend to get extended.

[pmeswani]

The only mention of that is as follows:

"This Contract is intended to govern the Company’s supply of Services to the Client for the duration of the Contract Period. Nothing in this Contract is intended to oblige (agency name) to offer any further assignment, whether during or after the Contract Period, or for the Company or any Consultant provided by the Company to accept such. Neither party wishes to imply any mutuality of obligation beyond the Services agreed."

I guess this means no..

That can be interpreted as "If your current work finishes early, and we have no further work, we are not obliged to keep you on after the current work comes to an end, even if it falls short of the length of the contract".

Could be wrong though.

[dynamicsaxcontractor]

Yes, it actually says: "8 hours per day on business days, other times to be agreed with the client". The only MOO statement was what I posted above.

If you dont get it in writing to not turn up for work and will still get paid 6 days you need to turn up. If they stop you from working they have to pay you. If you dont turn up without any promise to pay you for 6 days you cant expect payment.

[Peter Loew]

If you have a schedule with your client to provide 5 days work a week doing XYZ and a notice period of 1 week - they should always be paying you a minimum of 5 days. The MOO should be reflected in the acutal contract and state when no schedule exist there are no obligations to provide/accept work.

Yes, it actually says: "8 hours per day on business days, other times to be agreed with the client". The only MOO statement was what I posted above.

[dynamicsaxcontractor]

Not so much having a notice period as it is bad if they have to provide you with work. Getting paid for it is fine - and I hope you get it!

If you have a schedule with your client to provide 5 days work a week doing XYZ and a notice period of 1 week - they should always be paying you a minimum of 5 days. The MOO should be reflected in the acutal contract and state when no schedule exist there are no obligations to provide/accept work.

[BrilloPad]

Do you mean that having a notice period is bad for IR35 (I know and agree), or do you mean getting paid during your notice period is bad for IR35?

Not so much having a notice period as it is bad if they have to provide you with work. Getting paid for it is fine - and I hope you get it!

[Peter Loew]

Are they under obligation to provide you with work? If so its a very bad IR35 pointer.

Of course you can charge all you want - will they actually pay it? If they dont is it worth suing over a small amount?

Personally I would charge all I can - but in my mind write it off and look round elsewhere.

Do you mean that having a notice period is bad for IR35 (I know and agree), or do you mean getting paid during your notice period is bad for IR35?

[Peter Loew]

Is there any mention in your contract about Mutuality of Obligation? If so, they are probably not in breach of contract and are enforcing the T's & C's outlined in the contract. They can argue that there isn't any more work at the end of the week and your contract will come to an end before the notice period.

The only mention of that is as follows:

"This Contract is intended to govern the Company’s supply of Services to the Client for the duration of the Contract Period. Nothing in this Contract is intended to oblige (agency name) to offer any further assignment, whether during or after the Contract Period, or for the Company or any Consultant provided by the Company to accept such. Neither party wishes to imply any mutuality of obligation beyond the Services agreed."

I guess this means no..

[pmeswani]

Yes, this is what I've done. A contract is a contract is a contract. I don't mind walking away tomorrow but they're basically breaching the contract, which I do mind. I am happy to come to some arrangement with the client but they need to be reasonable with me.

Is there any mention in your contract about Mutuality of Obligation? If so, they are probably not in breach of contract and are enforcing the T's & C's outlined in the contract. They can argue that there isn't any more work at the end of the week and your contract will come to an end before the notice period.

[Peter Loew]

As your still employed and potentially doing something useful I would definitely pressure the agency to keep to the notice period, i.e. persuade the agency or client to work through your notice, to avoid a legal dispute. Worth a call to the agency and a chat with the client. Also check listen to their arguments, if they're very clear and point to some paragraph in the contract will give you an idea of the strength or weakness of your position.

Yes, this is what I've done. A contract is a contract is a contract. I don't mind walking away tomorrow but they're basically breaching the contract, which I do mind. I am happy to come to some arrangement with the client but they need to be reasonable with me.

[Peter Loew]

We get these questions all the time. You can try to push for the notice terms but it really is an IR35 no no. On a personal note, if you wanted job security, why did you go into contracting?

Who said anything about job security. I'm talking about contractual terms and you're talking about something entirely different.

[Antman]

I develop learning applications (e-learning modules, e-Tip Sheets, e-flow charts, etc), and at my current ClientCo, who I enjoy working with, I actually said to them recently that they should consider getting a permie in before the end of my contract so that I could give them some Instructional Design training, etc, and so that my good work would be continued! I explained that I'd seen it at previous clients that I come in, create a load of good stuff, leave and then no-one continues my work.

Their response?

They'd like me to consider a supplier arrangement after my contract whereby they come to me with learning application requests, I quote, I deliver, they pay. Fixed price work, no agency, no coming into the office. Ching ching!.

Sweeeet!

[JamJarST]

And so it has come to pass, I just woke up to a 1 week's notice email, except they want me in for another 1.5/2 days (it's a p/t contract).

However:

1) No word from the agency
2) I am on a 2 week notice period, not 1 week
3) The contract does not stipulate our verbal agreement of 3 days per week, the schedule simply says my rate for an 8-hour day

I have sent an email over to the agency asking them to clarify. But I am not very happy with the client asking me to simply to 1.5/2 extra days for the handover then sending me off.

Am I right in saying that a 2 week notice period means I can in all fairness charge them for an extra 6 days as I've never worked less than 3?

Any advice here would be great.

Thanks,

P

We get these questions all the time. You can try to push for the notice terms but it really is an IR35 no no. On a personal note, if you wanted job security, why did you go into contracting?

[GillsMan]

I develop learning applications (e-learning modules, e-Tip Sheets, e-flow charts, etc), and at my current ClientCo, who I enjoy working with, I actually said to them recently that they should consider getting a permie in before the end of my contract so that I could give them some Instructional Design training, etc, and so that my good work would be continued! I explained that I'd seen it at previous clients that I come in, create a load of good stuff, leave and then no-one continues my work.

Their response?

They'd like me to consider a supplier arrangement after my contract whereby they come to me with learning application requests, I quote, I deliver, they pay. Fixed price work, no agency, no coming into the office. Ching ching!.

[dynamicsaxcontractor]

Here's a question that you can't really google (pun intended),

When you're in the position where the client is looking to replace you with a permie, is the client open and honest with you and tell you that that's what they're doing, or do they do it 'behind your back' and simply give you notice when they've hired someone?

P

Never mind getting replaced by a permie, but also been asked to train the replacement..... This one week after being asked to go perm for a stupid low salary, oh well how do you keep yourself from laughing when client manager is dead serious when asking about taking a 70% wage cut?