'I and the rest of my team were laid off four months into a 6 month contract. After 2 weeks 'resting' (for which I was paid) the agent sent me for interview at another site for the same client. I found that the work did not interest me, and said I did not want it. The agent claimed this was gross misconduct and said that he was terminating my contract.'
We need to look at your contract to see where and what services you agreed to provide.
The contract says 'technical services as required' - a very broad description. If one of your reasons for taking a contract had been that you particularly wanted (say) to develop your C++ skills in a banking environment, then it would have been a mistake to accept a contract which defined your services in such a general way. It's probably an implied term under the 'officious bystander' principle that you won't be required to perform services outside your capabilities - but it would not be an implied term that you wouldn't be required to do things which might bore you to death. C++ programmers seem to have an aversion to being sidelined into reviewing hundreds of lines of COBOL daily for year 2000 compliance. But if it's within their capability and they've signed up for 'technical services as required', then (unfortunately for them) tough.
Similar comments apply to the location. The contract says that you will work at the client's site 'as specified in the schedule', and in the schedule an address for this is given. So that is neatly defined. Quite often I see contracts where the site is undefined, or which say that the Contractor will work at the Client's site and wherever else the Client requires; this could result in a Contractor who lives in Inverness and takes a contract which he thinks is local being required by the Client to spend part of his time in Exeter - or London - or vice versa. It's always important to ensure that the contract specifies a work location which can't be changed without your agreement!
In short, read, understand, and negotiate points like this before you sign - after you've signed, you'll be bound by them.
What you were asked to do at the new site was within what you had contracted to provide. If this had been the only reason for your refusal, you would have been in breach of contract.
The site at which you contracted to work was 85 miles from your home; you declined a position 15 miles from home. If you have contracted to provide one thing and then refuse to provide another, even though that other might appear to be more convenient, are you in breach of contract? Perhaps surprisingly, the answer is 'no'. You are obliged to perform the contract you have entered, not something different. You have complete discretion whether or not to agree to vary the contract. You're entitled to say 'no', even if that might appear unreasonable. So you are not in breach of contract by refusing to work at a location outside what was specified in the contract.
So what are the legal consequences of what happened?
We've now established that you were not in breach of contract by declining to perform services at the proposed new location.
The agent was not entitled to terminate the contract without notice. The agent nevertheless made clear that he was no longer prepared to be bound by it. He was therefore in breach.
You are entitled to damages. The measure of damages is what would put you in the position in which you would have been, had the contract been performed. If the agent had been entitled to terminate the contract prematurely, eg by notice, he will be presumed to have done so. Here, the agent had the right to terminate on one month's notice 'if the Client terminates'. I think you're entitled to one month in lieu of notice.
However, there's a 'gotcha'. Your entitlement is to damages for breach of contract. You therefore have a duty to mitigate your loss. You could have mitigated by agreeing to vary the contract and work at the new location. If you had done that, you would have suffered no loss. So whilst the agent is in breach, your damages would be a big fat zero.
Just one other point: because by terminating in this manner the agent indicated he was no longer prepared to be bound by the contract, it follows that you too are no longer bound by it. This means that you will no longer be bound by any restriction in the contract.
20th March 1998
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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