‘I signed a contract with an agency for a 6 month
assignment. The contact could be
terminated by either party on one month’s notice. When I turned up on the first day, it was clear that the Client
wasn’t expecting me, and hadn’t signed a contract with the agency. After discussion, the Client says it will
find something for me to do for 2 weeks.
The agency says that’s the best they can do.’
This is not an unusual situation – some agencies are
rather gung-ho about getting Contractors signed up fast, and often do so
without taking care to see that they also enter into a reciprocal commitment
with the client at the same time.
Sometimes agencies are more than a little cavalier about expecting the
Client to sign, and take a chance on it – and sometimes things go wrong. Maybe the Client takes someone through
another agency –maybe the agency misinterprets the Client’s expressed interest
as a firm commitment – or maybe the Client just changes its plans.
The first thing we need to do is to check your
contract, to make sure that there is no term in it which makes the contract
itself conditional on the Client signing up with the agency.
If there is not such a term, then well and
good. But if there is, then the effect
of such a term will be to make the entire contract conditional – whether the
contract ‘happens’ is dependent on an event wholly outside the Contractor’s
knowledge or control. And that, for the
Contractor, is disturbing. This is one
of the things Contractors should check carefully for, before signing a contract
in the first place – and should they find it, they should be sure that they
thoroughly understand its implications, before deciding whether or not the term
is acceptable - or telling the agency that they will not accept the term.
Sign a contract containing a term like this (eg
‘This contract is conditional on the Agency entering a contract with the Client
for the Contractor’s services before the Start Data’), and the Contractor is
agreeing to put him/herself on ice until that Start Date – (s)he is not free to
take another contract elsewhere, and must keep him/herself available for the
contract – but without the security of knowing that it will actually
happen. So if in this position, and if
you feel you can’t get the agency to withdraw the term, then (ideally) tell the
agency you will not yourself sign until they tell you they have actually got
the Client signed up - and in the meantime, keep other opportunities warm. And if you can’t get the agency to agree to
that, then at the very least, keep other possibilities open as a contingency
plan – and insist that the agency keep you fully informed. Here’s the point – you are locked in, but
the Agency isn’t, until and unless they sign with the Client.
Another term sometimes found which can have a
similar effect makes the continuation of the contract dependent on the
continuation of the client contract – the terms of which you have no knowledge
of. Such a term often appears as eg
‘This contract is conditional on the continuation of the Agency-Client contract
for the Contractor’s services’. Now, it
seems to me that a contract can only continue once it has in fact
begun, and so such a term expressed in this way would not have
helped the agency in your case – but what such a term may allow is the termination
of a Contractor’s contract without notice and without fault on the Contractor’s
part – which (were I a Contractor) I would regard as unacceptable. If there is fault (eg material breach of
contract), then it may be right that the Agency should have the right to
terminate without notice. But in the
absence of fault, it seems to me reasonable to expect notice.
Back to your problem: no term like either of these was in your contract. You are entitled to expect the agency to
honour their part, and it is up to them to resolve matters with their
client. The contract says you are
entitled to one month’s notice.
Therefore if (as appears the case) the agency is in breach, you are
entitled to damages for breach of contract – and on the face of it, those
damages would be the amount you would have earned in that month.
However, there is a duty to mitigate your losses –
to do your best to keep them down, by using reasonable steps to try and find
another contract to start as soon as possible – and to give credit against your
claim for sums received during that period under any other such contract.
You are being offered two weeks work. Is that work within your skill set? If so, then you may find that it would be a
failure to mitigate your losses if you were to decline, and that as a result
your right to damages would be reduced.
But if you accept that offer, do make expressly
clear in writing that your acceptance of this in no way prejudices your rights
under the contract to a month’s notice – if (for example) you were to agree to
sign a fresh contract for that two weeks to replace the original contract, then
you would probably find that you lost your rights to notice under the original
contract.
29th
September 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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