‘I took a contract through an agency to work abroad for 12 months. The role I have been deployed in is far less demanding that which I thought I had accepted; I’m being required to work at a different and less convenient address than I had been told at interview; and I’ve now been asked to work shifts.’
I’m finding that more and more Contractors are accepting contracts abroad nowadays – mainly in the EC, but also further afield, and it seems to me that, particularly if the IR35 debacle continues as threatened by the government, this is a trend likely to escalate.
Working abroad often offers attractive opportunities for arranging your affairs so as to make tax savings which are perfectly legitimate; making a commitment to do so also carries additional risks for the Contractor, especially where the family comes too.
Where a Contractor takes a contract in the UK, (s)he will generally expect to be able to commute, either daily, or weekly. If a contract is terminated prematurely, or isn’t working out as anticipated (as here), it won’t result in major life disruption; the task will simply be to find another contract.
Abroad, the choice is either to commute weekly, or to establish more of a ‘home’ locally. The weekly commuter using hotel or other short term local accomodation is in a similar position to a Contractor doing the same thing in the UK, but many Contractors understandably feel a strong temptation to make more of a commitment to establishing more of a local home base. This may include renting property locally, and renting out their homes in the UK for the duration of the contract. Longer term obligations are accepted, which will stand even if the contract, for one reason or another, is terminated early.
It is therefore particularly important to make sure, before accepting such a commitment in the first place, that the contract accurately reflects all the terms which you see as important.
The role you are to accept should be properly described – if you accept a position described in the contract as eg ‘computer consultant’, it can then be very difficult to argue that the exact duties you are being asked to undertake differ from those described to you at interview. If, for example, you are to be working as a C++ analyst/programmer, then make sure that is what the contract expressly says. Risks of misunderstanding what you have been engaged for are thereby minimised, and if all else fails you may have lawful rights to terminate the contract early – even if the contract itself gives you no rights to terminate on notice (more on that in a moment). The same logic applies to other considerations which are important – in your case, I’d include exact working location, and hours of work.
Here, the contract specifies the role, and it is clear that you are being asked to do work outside its scope; a (substantially different) working address is specified, as are hours of 0800-1800 – not the shift hours you are now being asked to do. Your contract contains no provision for termination on notice by you.
The terms of any contract can be varied by agreement between the parties to it. Such a variation in itself is a separate contract, requiring all the ingredients of a contract – clear agreement on the terms of the variation (consensus ad idem), consideration (each party putting something into it – a little bit artificial, this, but unless the change is transparently wholly one-sided, one can generally find something to satisfy the requirement for consideration); and intent to create legal relations. Often – and wisely – a contract will also expressly state that variations to it must be in writing.
One can also have a situation where a party to a contract by his/her actions waives a right to require strict compliance with certain of its terms; if (say) for the first two months of the contract you work without complaint at a different location, then you may well be taken to have waived your rights to insist on working at the location specified in the contract, and would probably be in some difficulties if you were now to complain that the location at which you are now working is outside the terms of the contract. If you’re asked to do something outside the terms of the contract, and you’re willing to give it a try but want to keep your options open, it’s important to make clear (in writing) that you are doing so on a trial basis and without prejudice to your rights to require the terms you agreed to in the contract to be complied with.
In your case, I think the change in work location is a weak point, simply because you’ve accepted it so far without complaint. The difference in role is slightly different, because you tell me you have been complaining about this periodically. The change in hours to shift work is something you clearly have the right to say no to, as you have not yet accepted this. For you to be required to work outside the contract terms may be a breach of contract on the part of the agency, and if the client insists, this may give you the right to terminate prematurely (and claim damages), even if the contract gives you no rights to terminate on notice.
There is an extent to which all these points may be academic, if the agency has the right to terminate the contract without notice, even if you are not at fault; many agency contracts do have this effect, often disguised in some way – for example, as the right to terminate if the client ends their contract with the agency. Contractors who are making a commitment to a contract which would result in major life disruption if it doesn’t work out should be particularly wary of such terms, and try and negotiate them out before signing.
23rd July 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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