‘I am in the middle of a 6 month contract. The Client has said that all Contractors are
to take 3 weeks holiday – unpaid – during August-October. Are we obliged to do so?’
This sounds to me suspiciously like the kind of penny
pinching methods often known as ‘management by accountants’ - ‘Hey, I’ve
discovered a way to save 25% on the bill for the Contractors we engaged over
this quarter!’ I’ve no doubt Dilbert
would have something to say on the subject!
Let’s start here:
your contract is with your agency, not the Client. Under the terms of your contract, you are
obliged to provide the contracted services for the entire contract period – and
the agency is required to accept those services. That is legally binding, both ways. If the Client had had such a wish, then it
should have made it clear to the agent at the outset. The engagement could then have been offered
on the basis that it was to be for 3 weeks less, during the current
quarter. You would have assessed that
and taken it into account in taking your decision as to whether or not to
accept the offer. Maybe you would have
done – or maybe not, maybe an alternative might have appeared more attractive. But the Client did not do so; you were offered,
and you accepted the engagement for the entire period; and so both you – and the agency – are stuck
with it. And, presumably it is also
binding as between agency and Client – although that (at least directly) is not
your problem.
This could of course be overridden by something in your
contract – for example, if the contract were for some ongoing task such as
support, rather than deliverable-focused, and if the contract contained a term
which had the effect of providing that there was no obligation on the Client to
actually take your services throughout its term. But otherwise, the
above sets out the contractual position.
If the contract says you will provide your services for x weeks for y
hours per week, in general terms it also means that your services will be
accepted for x and y.
So let’s look at what the possibilities are: First, it might suit you to take 3 weeks off
during that period – and if so, fine. Second, you might disregard this
statement – taking the view that your contract is not with the Client - and
simply work on as normal. Third, you
might grasp the nettle and say to the Client ‘thanks – but no thanks’.
What if the Client denies you access to the building once
you have worked ten weeks during that period?
For the Client to make it impossible for you to carry out your part of the
contract may be a breach, for which the agency is answerable – you would have
to take action against the agency, and it would be for them to take it up with
the Client under their own contract with the Client.
What if the Client gets difficult about signing
timesheets? In some ways this is a grey
area, and one which the proposed Employment Agency regulations would have
addressed – one of the regulations would have made terms requiring signed
timesheets as a precondition of payment unenforceable (still no word on whether
or if these regulations will come into force, by the way – I just checked
again).
But I have always taken the view that even if the contract
with the agency does appear to make signed timesheets a precondition, where a
Client declines to sign for work that has been done and where the Client has no
reasonable grounds for complaint, the proper course to pursue remains to take
legal action against the agency anyway, relying on a term that would probably
be implied in the contract to the effect that the Client would not fail to sign
timesheets for work that was in fact done, AND also to take such action against
the Client.
How, you may ask, since there is no contract between you and
the Client? The answer lies in something
somewhat quaintly called ‘quasi-contract’, and the principle is this: it must be clear that the Client cannot
reasonably have expected to have the benefit of your services for nothing. Therefore the Client, having had the benefit
of your services, should pay for them. Perfectly reasonable, when you think about it. An exception to the general rule that you can
only sue the agency since your contract is with them – this principle takes you
outside the scope of the contract itself.
It may be worthwhile checking your contract to see on what
basis the contract may be terminated by the agency – is there a clause that
says that it may be terminated without notice, if their own
contract with the Client is itself terminated?
Never lose sight of the fact that your contract is never any more secure
or dependable than the basis on which the agency can give notice to terminate
it.
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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