Stuck away from home

- a 'Freelance Informer' legal article from Roger Sinclair

'I accepted a 6-month contract to work in Germany for a year. I was to take over from someone else who was about to leave - but in the event, didn't. I was then sidelined off into other work less challenging and outside my field of expertise, and without being given the support I needed to tackle the job properly. When I complained, I was told to look for another position. I committed myself to rent a local apartment for a year, and can't see any reasonable prospect of finding another contract locally.'

I've read your contract. It's quite clear that, under its terms, you were contracted to fulfil a particular position, requiring particular skills which you have; and it's also clear that you haven't been able to carry out those tasks, because the client still has the person who had previously been performing them.

It seems to me that, where a contract provides that you will fill a particular position requiring the use of certain skills, then in the absence of clear wording to the contrary, it will also be an implied term (under the officious bystander principle) that such work will be available for you to do. Skills, unexercised, will atrophy. Skilled people don't just work to earn money today - they also work to keep those skills up to date, and to further develop those skills.

Often one finds in agency contracts that eg the Contractor 'will perform such computer related services as may be required by the client'. I don't actually like terms which are worded as generally as that, for two reasons:

• I often hear from Contractors who were attracted to a position and told at interview that the position would be one thing, or would require the use of their 'front line' skills, but are then diverted onto other tasks which, whilst possibly within the Contractor's field of expertise, are nevertheless unstimulating. This is particularly important where the Contractor accepts a commitment for a relatively long period, which he or she is unable to terminate on notice.
• It will be a term of the contract that the Contractor will be at least reasonably skilled in the duties he or she has agreed to carry out. Often there will be an express term along these lines, but where there is not, then there will be a term implied to similar effect by the Supply of Goods and Services Act 1982, namely that the Contractor will exercise reasonable care and skill in performing the services. Here, the worry is that the Contractor's performance will be judged on the basis that if s/he has contracted to undertake it, then s/he should be expert in it - regardless of whether or not it is in reality outside his/her actual skillset. Contracts often allow an agency to terminate without notice on grounds of incompetence, and if the Contractor has accepted a broad definition of the services to be provided, then may not help to say that the particular area in which s/he was asked to work and found wanting, whilst within the definition, was outside his/her expertise.

For both these reasons, it is important for the Contractor to ensure, before s/he enters the contract, that the duties and skills s/he is to provide (and which s/he has been told the position entails) are accurately stated in the contract.

Here - thankfully - you did make sure that the contract was sufficiently specific in terms of what you were to do. It is clear that what you are now being asked to do by the Client is outside the scope of what you contracted to do. You are within your contractual rights either in declining, or in declaring the contract terminated by breach on the part of the agency (in that they have failed to provide the work specified in the contract).

There is however a catch. The agency, as is so often the case, had the right under the contract to terminate on one month's notice, without any fault on your part. If you terminate for breach of contract, you will be entitled to damages, so as to place you in the position in which you would have been, had they not been in breach. Since the Agency could have terminated lawfully on one month's notice, then it follows that your damages will be limited to what you could have earned under the contract during that one month period. The fact that you may have entered a one year commitment for your local apartment is, I am afraid, immaterial - you will not be able to recover anything towards any additional losses you may suffer as a result of that.

16^th October 1998

Footnote: after this article appeared, I had the following email:

*From:* Steve Philcox <steve.philcox@cableinet.co.uk>

*To:* roger@egos.co.uk

Re the problem with the 1 year contract on the flat:

- it is possible to negotiate rental contracts in Germany that allow for termination under certain circumstances, though this may make you a less attractive tenant. I believe the British and American military do this as a matter of course, or would not approve a rental contract without such a clause.

- the normal way to get around this situation is to find, or have found, a "nachmieter" or after-renter, ie someone to take on the rest of the contract. This is the norm (1986 and 1992) for a German in this situation, and other people will respond to such an advert. The landlord may even choose to start over with a new contract, and the estate agent makes another commision.

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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