Reply to: New contract, where is the notice period on MY side ?

[malvolio]

How does, being forced to see out the term of the contract equal No MOO?

Surely it is the ultimate obligation.

tim

Why do I bother?

FFS, the M in MOO means Mutuality (big word, I know, look it up). If the client can do stuff with termination and you can't, there is no mutuality...

Anyway, as someone else pointed out, it's only a minor pointer - but every little helps!

[ratewhore]

Feck me - this is a deep and meaningful thread. Some interesting comments made, but in the real world, sometimes you can't have a verbatim IR35 friendly contract and you take what you can...

[tim123]

ok, I started this thread ... (note that I haven't signed the contract yet)....
and I conclude this ....

given that I have no notice period written into the contract on my side and the client has a 2 week notice period ...

a) If I sign the cotnract ... I cannot terminate the contract immediately and just walk away that would be in breach of contract, I have to do the contract for the whole 9 months.
...

No.

You are perfectly entitled to breach the contract. Doing so is not bad business, morally or professionally. It is a perfectly acceptable thing to do.

But, if you breach a contract, you are liable to pay the other parties unrecoverables losses. What these amount to will depend upon how easy it is for someone else to take over your work.

tim

[tim123]

Penalty clauses are unenforceable and if this ever went to court would be struck down in favour of the contractor. Its as simple as that.

Mailman

Penalty clauses are only unenforcable if they represent more than a reasonable estimate of the actual loss.

If the sum demanded IS a reasonable estimate of the loss, then the clause is fair and the sum is payable.

500 quid for someone walking out on a contract with no notice, seems to be on the low side to me.

tim

[tim123]

Got to agree with you Malvolio. Even the revenues own status manuals make it pretty clear that no Moo = not employee .

How does, being forced to see out the term of the contract equal No MOO?

Surely it is the ultimate obligation.

tim

[tim123]

Wrong. Have you not been listening?

If you have a deliverable,

But I don't, my deliverable is, "turn up and do whatever the feck we ask you to do".

I still find it hard to believe that the majority of contractors don't have clients like this.

you are providing a service, you are most of the way to being outside IR35 already. Throw in the no notice thing that started this thread off and it's almost guranteed. However, agree to turn up , sit there smiling brightly and be told to do this today and do that tomorrow, you are providing services and I hope you are paying IR35 because you are just a temp employee like the girls on reception.

Yep, that's exactly how my client base wants me to work. I'm quite amenable to constructive suggestions as to how I should change this, but simply stating the mantra "don't work like this" leaves me out of work.

Don't think that I haven't tried to change clients working methods, I have.

FFS, a contract is a bilateral document. If you don't like it, negotiate or don't sign it.

So, you suggest that I should become a dolee then.

There's plenty of work out there.

Really. I am currently finding it next to impossible to make a sideways move into another functional area on my product skill, or a new product with my core skill (device drivers on mobiles). I can get any number of offers of more of the same, or of a step down to "build manager" (this must be the ultimate "do as you are told" job!). But if I apply for anything else I get told "you haven't got X" where X sometimes takes two days to learn.

And you really think that I'm going to get a job doing PC apps in a banking environment just because I ask. I very much doubt it.

tim

[malvolio]

Told you so...

[zathras]

So we should be able to walk out at a moment's notice too?

If you hire a plumber to do your bathroom and then expect him to leave half way= through the job - No.

If you hire an electrician to do the electrical work in your house would you expect him to leave halfway through - No.

If you hire a painter to decorate your house would you expect him to leave halfway through - No.

So why on earth do you expect to leave a job halfway through when you supply services to a business. At the very least one should find an alternative consultant.

The practical thing is that unlike being an electrician, painter or decorator it is almost impossible to accurately determine how long a job will take. Hence this thing we have with what in effect is Time & Materials.

Businesses also change policy and plans. Business is a harsh world and if one wants the nice cosy life of an employee then one should return to employment.

Not having notice in a contract does not preclude being able to leave early, one just consults with the client before doing so. If the client has more work does that mean you would turn it down? Daft business if you do.

[malvolio]

Really shouldn't say things like that, Denny. Some of the wallies around here might think you mean it...

[Denny]

The point is that it is only in employment situations is a notice period a requirement in law. While there are many laudable reasons for having it there a legal requirement is not one of them and one should not expect it.

You are there to provide a service to a client. When they no longer require it then they can stop using you. That is what business is all about.

So we should be able to walk out at a moment's notice too?

[malvolio]

then tell me where I'm going wrong in my thinking .. pls

(a) You are providing professional services, you are not doing a job. The point of the contract is that you deliver what is says, hence you don't need a notice period. If you absolutely have to leave before completion, you should negotiate it with the agency and the client, or provide a sub, not just tell them you're off.

(b) See (a). Also, the guy fitting your new bathroom wants you to agree to let him stop work before he's finished it, providing he tells you he's doing so. Would you let him start work under those circumstances? Or take it to the guy who promises to complete the work?

As someone else said, notice periods are for permies. Contractors don't need them and shouldn't have them.

[zathras]

This sort of advice isn't much use, to be honest instead in seems like like a self-hypnosis exercise by the respondee to convince himself that he's always an 'own business.'

Any contractor who does not fall outside the criteria set out by Gordo for being an 'own business' and therefore IR35 exempt when working on site is entitled to be given a notice period and to give one in return, depending on the terms of the contract you agreed.

Even with private clients, where I often work without recruiter involvement, am paid direct after invoicing them and taxed as a self-assessed sole trader (I am not 'owner managed') I often negotiate the end of a set piece of work that was expected to last for 'x' period of time with plenty of time given on both sides to end the arrangement, should it be necessary.

Being booted out without notice on both sides, when there was a clear expectation on both sides from the outset that time would be given to get a replacement or for me to find something else, I would consider to be very unprofessional and unbusinesslike. Normally I would give at least a week to such a client, and I would hope and expect they would extend the same courtesy to me. If they can't because the work dries up or I finish it earlier than I thought I would I would certainly expect them to find me other work for another five days (which they have done in the past) or at least promise me something else by first refusal as soon as something else suitable comes up. Normally the latter happens and we're both happy.

Surely, being in business is about building relationships and trust with your clients and vica versa not about being shafted and deceived and treated like dirt. How can any business thrive and grow if resentment grows out of an experience of carrying out a piece of work? How can any business thrive if freelancers drag out a piece of work unnecessarily just to make as much out of their client as possible? Unless you are working on a fixed fee basis for whole pieces of work, irrespective of how long it takes (I never do), then you are simply being penalised for be more efficient if you are paid daily or hourly rates. I do not wish to adopt that attitude with my clients so I expect regular work in return when informal notice period arrangements can't be honoured. I have had no problems with achieving both.

The point is that it is only in employment situations is a notice period a requirement in law. While there are many laudable reasons for having it there a legal requirement is not one of them and one should not expect it.

You are there to provide a service to a client. When they no longer require it then they can stop using you. That is what business is all about.

[messiah]

then tell me where I'm going wrong in my thinking .. pls

[malvolio]

Wrong, but at least you're starting to think. Now try again.

[messiah]

I started this thread .. so from what I am reading I conclude .

ok, I started this thread ... (note that I haven't signed the contract yet)....
and I conclude this ....

given that I have no notice period written into the contract on my side and the client has a 2 week notice period ...

a) If I sign the cotnract ... I cannot terminate the contract immediately and just walk away that would be in breach of contract, I have to do the contract for the whole 9 months.

b) If I push for a notice period on my side in a new contract ... I may be getting into dodgy ground where this is a negative point for being caught by IR35 by the Inland Revenue ..

...