'I accepted a direct contract as a developer. I've worked there for 8 weeks and so far have not written a single line of code - Instead, I've been allocated responsibility for the project documentation. It's running late, the client has penalty clauses with its own customer, and it's incredibly boring! I've complained in writing about this, but they won't change things.'
I can understand your concerns. Development is an area where it's important for the Contractor to keep his/her skills up to date, and the wise Contractor will always be thinking ahead and considering how the task (s)he is doing today will look on tomorrow's CV, when it comes to looking for the next contract.
As always, our starting point needs to be the contract itself. Here, it quite clearly states that your role is to be a 'software developer'. There's nothing expressly stated in the contract which might give the client the right to re-deploy you into a different role. It's a 4 month contract and there's 2 months still to go. Either party has the right to terminate it on 4 weeks notice. There's nothing in the contract saying that variations must be in writing.
It's therefore clear that you have contracted to provide work of a different type to that which you have been given. It's an important point, often overlooked, that just as it's your obligation to do the work you have contracted to do, so it's also the other party's responsibility to provide it. The law recognises that skilled people need to practice those skills, in order to keep those skills up to date and further develop them.
So you can't be accused of being in breach of contract for declining to do something which is outside the scope of what you agreed to do. Indeed, I'd go further: by doing it, you are warranting that the work will be done with at least reasonable care and skill (and quite possibly with the degree of care and skill one would be entitled to expect of an expert in the field), and so if you are doing something outside your speciality you might be walking on dangerous ground.
Has the contract been varied? If I understand it correctly, you were told and not asked to do the documentation. You've objected, but with no effect. I think there are good grounds for saying that the contract has not been varied, insofar as your role is concerned.
As I see it, you have three options:
First, you could complain once more, formally and in writing. You should draw their attention to the fact that the contract you and they entered provided for you to work as a software developer, and not as a technical author. You should say that the fact that the work you contracted for is not being made available is a breach of contract, and that you reserve the right to terminate for their breach if the position is not rectified promptly.
Give them a specified period of time to put things right, and then if they do not do so, declare the contract terminated. You'll be entitled to be paid for the work you have done, and to damages in lieu of the notice period you would have had, had they terminated by notice. You will of course have a duty to mitigate - ie, to try and find another contract as soon as you reasonably can, and to give credit for your earnings under another contract for that period against your claim in lieu of notice.
Secondly, you might declare the contract terminated now (ie without warning) by their breach. I don't think this would be a wise move - whilst you might when first asked to do the documentation have said 'no', things have moved on, and any such action now could result in the client claiming you yourself were in breach. Rightly or wrongly, you could well have difficulty, not only recovering damages in lieu of notice, but also in getting paid for the work you have done.
Your third option is to accept the fact that there now remain no more than two months to go, and to sweat it out but decline any offered extension. Not ideal, but it does offer some degree of certainty, and may be the best option so far as your CV and your future is concerned - provided of course you are satisfied that you can do the job properly.
One of my clients tells me I should end each article by spelling out the moral of the tale: Here, the lessons are that it is wise to ensure before signing a contract that it accurately states what you will be doing; and that if, having signed such a contract which is specific in this way, you are then asked to do something else which is outside that description and which you prefer not to do (or don't feel fully competent about doing), just say 'no' - or at least expressly acknowledge in writing that it is outside the scope of what you agreed to do, and that whilst you may be prepared to give it a try, you reserve the right to change your mind, and to ask to be put back on what you actually signed up for.
14th May 1999
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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