'I've been working for the same client for 3 years; my current contract runs to the end of January. I've just heard that the Client expects all its Contractors to take 2 weeks off over Christmas. When I thanked the Client for giving two weeks paid leave, the answer was 'Oh no, you won't get paid for it'. What is my position?'
The first question we have to ask is whether or not there is an obligation on the Agency to provide you with work throughout the contract period. As always, our starting point must be to look at the entire contract.
Here, you have agreed to work for the client, from a start date until an end date, in return for which you will be paid at an hourly rate. Here, the nearest reference to working times is where it is stated that you will work during the Client's 'normal working week' - a term not otherwise defined.
What is the Client's 'normal working week'? You will know this from your own experience with this Client - the times when the Client's department in which you work is normally open for business.
Does the fact that the Client appears to be trying to define its 'normal working week' as something different over the Christmas period make any difference? I think not.
One is entitled to assume that the word 'normal' is included in the phrase for some reason. A definition of a working week for a couple of weeks which differs from 'normal' is, it seems to me almost by definition, abnormal. A change from eg '9 to 5 Mondays to Fridays' to '9 to 5.30 Mondays to Fridays', intended to be a permanent change, could certainly become a change to the 'normal'. But I cannot see that this could apply to a mere temporary change, even if (which I understand is not the case) the Client made the same temporary change on a regular annual basis.
In any case, I understand that the Client does not intend to close for this period - its permanent staff in the same department will remain there on all days other than bank holidays. So I think that, whichever way one views it, the Client's 'normal working week' remains Mondays to Fridays, excluding bank holidays, and not open to temporary unilateral change.
Does this mean that it is also a term that work will be available for you during that normal working week? If the contract expressly said so, we would have our answer. If the contract expressly said there was no commitment for work to be available, we would have the opposite answer. Where the contract is silent on the point, we ask whether or not a term covering the point should be implied into the contract; note that we can't simply do this by arguing that it would be reasonable to do so, and can only do so on the basis that the 'contract won't work without it', or under the 'officious bystander principle' - that the point was so obvious it didn’t need to be expressly stated. We have to look at the whole contract and form an opinion.
If the correct interpretation was that there was no term that work would be available, then this would mean that the Client (and therefore the Agency) could effectively suspend the contract at any time, without notice, without cause, and without paying you - whilst you on the other hand would be obliged to keep yourself free of other commitments for the contract period, in case you were required by the Client. It seems to me that this would be an inevitable consequence if there were not a term of the contract that work would be available. My own view is that such an interpretation could only be justified by very clear and express wording to that effect in the contract.
So my conclusion is that, in this case, it was a term of the contract that work would be available, during the whole of the contract period, for the Client's 'normal working hours'. You should expect to be entitled to work on all days other than bank holidays. For you to be refused the right to work on these days would be a breach of contract.
You have these choices - you can waive the breach, ie accept the fact that you will have unpaid time off (and I think that unless you object now, that is what you will be considered to have done); or you can treat it as a breach of contract and claim damages, of the amount you would have earned, had it not been for the breach - in which case the one thing I think you must do is to make clear to the Agency, in writing, and now, that you are ready, willing and able to work for this period, and that you expect to be paid in any event, regardless of whether or not you are actually required to work.
11th December 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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