Reply to: Breach of contract during notice period

[vwdan]

I handed in my 3 month permie notice without a contract to go to.

You just have to set yourself adrift from the permie land onto contractor waters.

There's nothing guaranteed in contracting. That's what being a contractor is all about...

Yep - this is what I'm doing. In 5 weeks I'll be jobless for the very first time in 10 years - if nothing else, it's a giggle to say "Yeah, I'm leaving my job" "Oh, where you off to?" "Nowhere, yet." It's really not the done thing, apparently!

I think there comes a point where if you want to do something, you have to just take a gamble and jump the **** in.

[Scrag Meister]

I handed in my 3 month permie notice without a contract to go to.

You just have to set yourself adrift from the permie land onto contractor waters.

There's nothing guaranteed in contracting. That's what being a contractor is all about...

I did exactly this, then took another 3 months to start my first contract.

Was quite nice having a few months off, having been permie for the previous 20 years.

[curtis]

I am so tempted to jack it in and take the risk but I have no warchest to fall back on in the event of not finding a contract.

Unless you got made redundant I would not even consider starting contracting till you have a war chest to fall back on. What if they wait a month for you and you start your contract then they say they don't need you after a few weeks and the contract ends what will you fall back on?

When I decided to go contracting I had a year plan to save as much money as I can and then hand my notice in.

[SueEllen]

It will come down to whether the contract says something about only being paid on the receipt of a signed timesheet, or only being paid for the days that work is done etc. etc.

Some contracts allow for an immediate termination, usually on the lines of a vague "if the client isn't happy" line, which would exclude them from paying you.

Rather than it being a payment for not doing any work, there are ways to word it so that it's a cancellation without notice fee. Some posters here have mentioned always including one, but I haven't seen anyone produce any decent wording of how to ensure it is valid without becoming an IR35 pointer.

Your confusion comes from reading contracts as a whole.

Unless clauses are clearly linked in a contract they can be interpreted independently. Linked clauses usually reference each other by number. Which is why there is a statement in contracts stating something like if a clause isn't valid the entire contract isn't void just that clause.

Then there is the issue of whether a clause is legally enforceable if you are not opted-out.

A couple of my recent contracts have had a clause in them that state that the agency isn't liable for any costs if the contract is cancelled before it starts.

This indicates that agents have been pursued for compensation in this event and have had to pay out. You would interpret this as MOO if the clause wasn't in the contract but the courts obviously don't.

Vague terms like "client not happy" help no one. The agent can find themselves liable for things they wouldn't be liable if they had clearly defined the clause and vice versa.

[beatleuk]

Thanks to everyone for all of your replies. I am so tempted to jack it in and take the risk but I have no warchest to fall back on in the event of not finding a contract.
I am looking to employ the shortened (2 weeks) notice period or even to mention I'm moving to a competitor and hope they put me on gardening leave straight away!

[NotAllThere]

Really, I would like to think most peoples moral compass would decide that this is not the course of action to take, you sign a contract with 3 months notice and if you expect the employer to honour it then so should you IMO...

But legally, the employer hasn't a leg to stand on. Any notice period longer than a payment period is only of benefit to employees - though many employers seem not to be aware of this. Or perhaps they hope their employees won't become aware of it. Even then, if you say "I'm not in tomorrow", all they can do is not pay you after that.

However - it's a bad idea for your first action as a contractor to be breaking a contract!

[kal]

Agreed I would honour contract too.

I have less compunction when it comes to permanent empolyment as they have generally had the better of the deal over the term than the employee.

Guess that is why I contract only.

My previous permie employer made a bunch of devs redundant (not me unfortunately!), all on 3 months notice so they alll got 3 months pay in lieu as well as the usual redundancy pay, not sure what you mean by the employer having the better of the deal, they were all glad of the buffer the payments gave them and most took time off to relax over the summer!

[Bellona]

I handed in my 3 month permie notice without a contract to go to.

You just have to set yourself adrift from the permie land onto contractor waters.

There's nothing guaranteed in contracting. That's what being a contractor is all about...

+1 - WCS
I handed in my permie notice with no contract to go to, and ended up having to rely on my war chest for over 3 months : but I had made a decision to set up as a LTD and go contracting, and had prepared accordingly.

There are no guarantees in this world, you just have to be sure that you prepare as best you can.

[GillsMan]

Why would a business not want to be paid? No don't answer that, as I know it's just yet another example of everyone here turning everything into an IR35 discussion even though it wasn't mentioned in any way by the OP.

At the risk of starting the same old argument, if they're in breach of contract then you should be able to sue them for compensation. If the contract says 4 weeks notice, they owe you for what you would have expected to work.

Compensation can only be awarded when you have suffered a loss. Since most contracts should have a MOO clause in there, there won't be any losses, so yeah, good luck suing for compensation. The second part of my post did state that you could try to put a cancellation clause in there, but I see you didn't quote that, nice one.

Try again.

[psychocandy]

As everyone says not so easy to get a contract and then get them to wait for a month. It does happen but 3 months I'd say never ever.

First time around I got a contract when I was permie and they agreed to wait for the month. (this was late 90s though). BUT it happened to me, client pulled it after two weeks (I'd already handed my permie notice in!). Luckily, it was just a blip and it all went through (albeit delayed by a week) but I did tulip myself.

Last time I took VR because I was pissed off with the place so had a ready made warchest and had a shedload of gardening leave to look for contract. Even though employers were right twats and said they'd sue anyone who started contract when they were still employed and on gardening leave. With me, I started two weeks after official end.

Big jump though to just hand in your notice and jump from permie job with no contract lined up.

[Old Greg]

Why would a business not want to be paid? No don't answer that, as I know it's just yet another example of everyone here turning everything into an IR35 discussion even though it wasn't mentioned in any way by the OP.

At the risk of starting the same old argument, if they're in breach of contract then you should be able to sue them for compensation. If the contract says 4 weeks notice, they owe you for what you would have expected to work.

Then sue them for compensation. You may win, depending on the contract. But you've still given up your job.

[jmo21]

This, my friends, is the risk you run: if it is cancelled before you start, then you can do nothing about it.

Only hand in your notice if you understand and accept that risk.

And once you have accepted this fact, you will realise why it makes a lot of sense to build a war chest before starting contracting, and keep it topped up while contracting.

By war chest we mean savings that can keep you alive while out of work. How much that is will of course depend on your circumstances, location, family etc.

[DirtyDog]

Why would a business not want to be paid? No don't answer that, as I know it's just yet another example of everyone here turning everything into an IR35 discussion even though it wasn't mentioned in any way by the OP.

At the risk of starting the same old argument, if they're in breach of contract then you should be able to sue them for compensation. If the contract says 4 weeks notice, they owe you for what you would have expected to work.

It will come down to whether the contract says something about only being paid on the receipt of a signed timesheet, or only being paid for the days that work is done etc. etc.

Some contracts allow for an immediate termination, usually on the lines of a vague "if the client isn't happy" line, which would exclude them from paying you.

Rather than it being a payment for not doing any work, there are ways to word it so that it's a cancellation without notice fee. Some posters here have mentioned always including one, but I haven't seen anyone produce any decent wording of how to ensure it is valid without becoming an IR35 pointer.

[VectraMan]

To the OP: there is nothing you can do to protect yourself financially if this happens in terms of forcing the client or agent to pay. In fact, as a business, you do not want to get paid for work you don't deliver.

Why would a business not want to be paid? No don't answer that, as I know it's just yet another example of everyone here turning everything into an IR35 discussion even though it wasn't mentioned in any way by the OP.

At the risk of starting the same old argument, if they're in breach of contract then you should be able to sue them for compensation. If the contract says 4 weeks notice, they owe you for what you would have expected to work.

[Damon]

Agreed I would honour contract too.

I have less compunction when it comes to permanent empolyment as they have generally had the better of the deal over the term than the employee.

Guess that is why I contract only.