Shot in the foot…

- a 'Freelance Informer' legal article from Roger Sinclair

'I was told by the Client that my contract was to end 3 weeks early - but despite my requests for clarification from the agency, I heard nothing from them until today - and now they are saying that since I knew from the client that the contract was due to end early, they have no further liability.'

On the face of it, this is a bit of a chestnut - although there is a twist, which you'll see as (or should I say 'if'!) you read on.

Those Contractors who are regular readers of my column (and this is now my 100^th article for Freelance Informer!) will have a quick answer to this question; they will appreciate by now that the contract is between their company and the agency - and therefore it is only the Contractor's company or the agency who can give notice. The Client is not a party to the contract, and so any 'notice' given by the Client to the Contractor cannot be effective notice to terminate the contract.

Generally in such a situation the Contractor would immediately ask the agency for clarification; the agency would check with the Client, and (if appropriate) would then give proper notice in accordance with the contract to the Contractor's company - typically, 4 weeks in writing. Well, that's what one would expect to happen - 'I's would be dotted and 'T's crossed, everything would be done properly, and everyone would know where they stand - and that last bit, everyone knowing where they stand, is really what it's all about (and, for that matter, a very big part of what the whole of the law of contract is all about). But hey, welcome to the real world, things don't always happen as they should.

Under your contract terms, the agency has the right to terminate on 4 weeks notice; there is no rule of law that such notices have to be in writing, and whilst agency-contractor contracts in this industry generally include a term saying notices are to be in writing, your particular contract does not - so oral notice from an agency representative to a representative of the Contractor's company would have sufficed. But it would still be down to the agency to prove that they had given such notice - which is why terms specifying 'notices in writing' are A Good Thing - they reduce scope for disagreement and uncertainty on whether or not notice was actually given.

Anyway, it is clear that the agency did not in fact give such notice - whether written or oral - until a few days before the actual (early) end date. So on the face of it, it would appear that the agency is in breach of contract; that you are entitled to damages to put you in the position in which you would have been, had the contract not been breached; and that the measure of those damages is the income you lost at the contract rate for the remaining 3 weeks of the contract period - subject of course to your duty to mitigate your losses.

In this case however there is a catch. When the agency did finally get round to writing to you, they drew attention to an email you had sent them just after the client had told you that your contract was to end early. And when we look at that email, we see that you said 'here's my updated CV; since I've been given 4 weeks notice I'm now available from…'.

I have a technical expression to cover such situations. It's 'shooting yourself in the foot' - or here, perhaps, double-barrelled in both.

Let's look at the possibilities:

1. We say the agency didn't give you notice - maybe they say they did (orally) - and point to the email, and ask why you would have sent the email, if they hadn't given you notice. A Court would find this (very) persuasive. You lose.
2. The Agency say they didn't give you notice - but that the Client did, and that (whilst you did not have to do so) you did in fact accept that notice as if it had come from them - ie you accepted that in giving you notice, the Client acted as the Agency's agent-in-law. You lose.
3. The agency accepts that they did not give you notice, and that they were thereby in breach - but say that by your email you waived your rights to object to that breach and acknowledged notice, even though it had not in fact been given. You lose.
4. The agency accepts that they did not give you notice, and that they were thereby in breach - but say that you have suffered no loss, because you had no uncertainty about the fact that the contract was terminating early 4 weeks in advance, and that is no less than the notice period you would have been entitled to. You win on the issue of breach of contract, but your victory is Pyrrhic - you have no loss, and so don’t actually get any money.

So what's the lesson here? If the Client gives you 'notice', then do no more than ask the agency for clarification; if you send them your updated CV, expressly say it's 'just in case' - and DON'T use language which suggests that the Client's notice is accepted. When all's said and done, your company's contractual relationship is with the Agency.

17^th March 2000

I'd really appreciate your feedback on this FAQ - so mail me and tell me what you think of it, if it's been useful to you, or let me know of any specific problem you have where I may be able to help.

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