'I was signed up by an agency for a contract working through a consultancy which was providing support for an end client. The consultancy has told me my contract is ending early, because their own contract with the client is ending. The agency hasn't yet given me notice.'
The first thing you need to do is to clarify what is happening. I have read your contract, and under its terms, if it is to be ended early then you are entitled to 4 weeks written notice from the agency. That means exactly what it says - something in writing from the agency, telling you that the contract will end on a date at least 4 weeks after the date on which you receive the letter (or after the date on which you are presumed to have received it, if the contract specifies any particular rules for service of notices).
Will a fax or email be enough to amount to written notice? Maybe, provided (a) giving notices by fax or email does not conflict with any express contractual term saying how notices are to be given, and (b) provided the agency can prove the notice was actually received by you, and that no questions arise about its authenticity, ie about the fact that it actually was the agency who sent it. All these points of course disappear into history once you actually acknowledge the notice and say it's accepted.
4 week's written notice does NOT mean, as I saw recently, eg a letter dated 10th July, saying 'this is 4 weeks notice effective from 1st July'. Notice is notice, and can only be effective from the day it actually notifies the party to whom it is addressed! Technology may be advancing rapidly, but time travel remains on the wish list!
What happens if the agency doesn't give you notice, and the day then comes when the consultancy and the end client don't want you any more? That depends on whether, on a correct interpretation of the contract, the agency is under an obligation to provide the work specified by the contract.
Most contracts in this industry will specify clearly what you are required to do, where, for what number of hours per week, and for what period, but they don’t expressly say the agency must provide that opportunity for work throughout the period. But all is not lost - it seems to me that where party A agrees to do something specific for a period, then it must also be implicit (ie an implied term of the contract) that party B will permit that something specific to be done throughout that same period - we justify an implied term to this effect on the basis that the contract 'won't work' without it. A contractual term won't be implied on this basis if the term to be implied would be inconsistent with the express terms of the contract, but it's rare to find a Contractor's contract which expressly says the agency has no obligation to provide work during an assignment.
In all probability therefore, when the day comes when there is no more work for you to do, then unless the agency has terminated the contract lawfully (ie by giving the written notice the contract requires), the agency will be in breach of contract. You may then accept that breach as terminating the contract, and claim damages.
Your damages will be limited by the amount the agency would have been liable for, had they terminated lawfully at the time of the breach - so if they were entitled to terminate on 4 weeks written notice at that point, then your damages would be limited to 4 weeks in lieu (unless of course the period of the contract itself ended during that 4 week period, in which case your damages would be limited to payment in lieu for the remainder of the contract period)s. Be prepared to be able to show that you have attempted to mitigate your losses by trying to find another contract as soon as reasonably practicable, and give credit in respect of any part of the 'notice' period when you have in fact been working under another contract.
In practice, if you are presented with a situation where you are told by someone who is not a party to the contract that it is likely to end prematurely, then the wise thing to do would be to put a query in writing to the agency and ask them - expressing it eg as 'I have heard from x that there is a possibility that the client's requirements for me under the contract may end early - can you please clarify whether or not this is the case' - thus making clear from your own query that you are uncertain about the position and are looking for their clarification. That way you at least help to put yourself in the position where, as quickly as possible, you have the certainty of knowing what is going to happen.
20th August 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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