Reply to: No explicit termination clause mentioned for me where as consultancy can terminate me

[MattZani]

No, it means that you cannot give notice. I suspect that you've got a draft or standard contract where the details haven't been populated - I would not rely on being able to terminate the contract with no notice in this scenario.

Thanks. I'd better get in touch with the agent to get the amendments i want put in words and stay home until it's all done

[Cenobite]

Has anyone come across such situation?

I had a contract like that with e-Resourcing. I'd never walked out of a contract before so thought what the hell. Unfortunately it was the worst contract I've ever had and after a few months I told the client about the situation and asked them to let me go.

[TheFaQQer]

Both fields were left blank. So the contract mentions the notice period but with nothing written. Does it mean my notice period is 0 (days/weeks/whatever) and can leave whenever I want?

No, it means that you cannot give notice. I suspect that you've got a draft or standard contract where the details haven't been populated - I would not rely on being able to terminate the contract with no notice in this scenario.

[northernladuk]

Yes, you are totally right.
I admit I was extremely naive as it was my first gig and had no clue whatsoever about how things go (not that I know much more now..).

Anyways the contract I'm talking about started last december, with already 2 extensions (always with the 0.00 working hours thing ) and so far I've always been paid.

Get your contract checked by QDOS every time (except when it's an extension and it's the same word for word).

I was just wondering if I can turn my naivety to my favour

No you can't. You'll just prove your naivety and move on to making yourself look stupid.

[MattZani]

Do you not think if it's left blank it's more likely someone hasn't filled it in? Why not speak to the agent and ask them? Further backed up with the 0.00 hours working week.

You have to apply a bit of common sense sometimes you know. It'd a hardship but has to be done sometimes

Yes, you are totally right.
I admit I was extremely naive as it was my first gig and had no clue whatsoever about how things go (not that I know much more now..).

Anyways the contract I'm talking about started last december, with already 2 extensions (always with the 0.00 working hours thing ) and so far I've always been paid.

I was just wondering if I can turn my naivety to my favour

[northernladuk]

Hi all

I'm digging up this old thread because I have a similar situation with a little tweak.

In the notice period section, the contract says:

Notice Period
Contractor Notice Period:
Client Notice Period:

Both fields were left blank. So the contract mentions the notice period but with nothing written. Does it mean my notice period is 0 (days/weeks/whatever) and can leave whenever I want?


In another section of the contract it says

Standard hours in normal working week: 0.00
Fee Per Hour: £x

Does it mean that I could potentially leave at anytime and start another job immediately without breaching my previous contract because the contract says I "have to commit" for 0 hours a week?

Thanks

Do you not think if it's left blank it's more likely someone hasn't filled it in? Why not speak to the agent and ask them? Further backed up with the 0.00 hours working week.

You have to apply a bit of common sense sometimes you know. It'd a hardship but has to be done sometimes

[MattZani]

Hi all

I'm digging up this old thread because I have a similar situation with a little tweak.

In the notice period section, the contract says:

Notice Period
Contractor Notice Period:
Client Notice Period:

Both fields were left blank. So the contract mentions the notice period but with nothing written. Does it mean my notice period is 0 (days/weeks/whatever) and can leave whenever I want?


In another section of the contract it says

Standard hours in normal working week: 0.00
Fee Per Hour: £x

Does it mean that I could potentially leave at anytime and start another job immediately without breaching my previous contract because the contract says I "have to commit" for 0 hours a week?

Thanks

[northernladuk]

A supplier being paid a notice period and doing no work because a client decides to end a contract early is a penalty clause.

I know people who have put them in building contracts as well as other business contracts.

One of my previous clients worked out it was cheaper to pay one of their suppliers, a consultancy, to do nothing for a month than to let them and their staff touch any work as the client's lawyers fees would have been more expensive.

It isn't unless it is documented as such. If it isn't documented but expected by either party it starts messing about with your MoO and becomes an IR35 problem. It is only a clause if it is documented as such... and we don't tend to have this documented.

[SueEllen]

We have seen how many people come on here expecting to get paid their notice period even if they don't do any work.

A supplier being paid a notice period and doing no work because a client decides to end a contract early is a penalty clause.

I know people who have put them in building contracts as well as other business contracts.

One of my previous clients worked out it was cheaper to pay one of their suppliers, a consultancy, to do nothing for a month than to let them and their staff touch any work as the client's lawyers fees would have been more expensive.

[7specialgems]

nothing in the questions

have to be honest haven't seen one for a few months, nor can i remember the case studies though.

Sorry - misphrased my comment. You are right in that there is nothing in the questions.

[BolshieBastard]

Just to say, when B&C have reviewed my contracts, they have stated that having a resignation clause is what 'permanent' workers have and, in their considered opinion, is a weak pointer towards IR35.

Myself, I prefer reciprical termination clause just in case you need to bail. Although agencies say they will 'negotiate' anyone needing to end a contract early, I've no doubt this will be on their terms and not mutually beneficial ones.

Again, people need to read and understand the contract before accepting. The OP is yet another example of those people who do not them come running onto the forum with a query. FFS sort it out!

[northernladuk]

I'm beginning to think it's 2001 again...

It's a good thing, if you can accept the commercial disadvantage: it means you are there to deliver a set piece of work, plus employees have to have a notice of termination period so if you haven't then you can't be an employee, disguised or otherwise.

But hey, if you want to think like a permie then fine. Just don't compalin to the rest of us.

I don't think you are quite right in this context Mal. I know you hate arguing about it but having NO notice period is good. i.e. the client can bin you with no notice and you can't give them any is the best situation. In this case the client has notice period so the whole business advantage argument is ruined and can lead to other IR35 issues such as 'gardening leave'. We have seen how many people come on here expecting to get paid their notice period even if they don't do any work.

A good example is MBF V HMRC. Reading the summaries the key to his win was a total lack of notice either way as per the comment below.

MBF Design Services Limited vs HMRC: IR35 is why it pays to have no notice period :: Contractor UK

However the subsequent judgement, in MBF Vs the Commissioners for HM Revenue & Customs, overturned the lower court’s ruling, following an appeal by Mr Fitzpatrick. Potentially important to contractors in a similar contractual chain, the judgement indicates that a right by the employer/end-user to ‘terminate without notice’ is likely to have a significant bearing on the applicability of IR35.

Because although Tribunal Judge Malachy Cornwell-Kelly agreed that much of the Mr Fitzpatrick’s terms were ambiguous and could be treated as creating either an employee or contractor relationship, Airbus’ right to terminate the contract without giving either notice or compensation was among the determining factors of his contract status.

It is quite easy to see in this case how, what Mal says, is quite correct, having no notice is good for IR35.. But this is only if it doesn't exist for either party.

With the OP the client can give him 14 days so the whole 'no notice period' argument will fail. Whether he himself has a notice period or not is pretty irrelavant now IMO.

[GB9]

QDOS guidance says avoid termination period if possible, but if there has to be one, ensure it is equal on both parties.

[malvolio]

I'm beginning to think it's 2001 again...

It's a good thing, if you can accept the commercial disadvantage: it means you are there to deliver a set piece of work, plus employees have to have a notice of termination period so if you haven't then you can't be an employee, disguised or otherwise.

But hey, if you want to think like a permie then fine. Just don't compalin to the rest of us.

[northernladuk]

I was thinking (hoping?) the OP meant that when he gives notice the agency will withold payment for work done up to the point at which he leaves.

Possibly but whichever he means he is still showing naivety which he needs to get clear up before he goes any further. If you are right the he needs to get his head around the fact that agent's don't trick you in to them not having to pay. There is no 'trick'. He then also needs to understand his Opt In / Opt Out status (which is in a sticky at the top of this forum if the OP is reading).