Contractors' Questions: Should I be paid for ‘unsatisfactory’ work?

Contractor’s Question: On day 4 of an IT contract due to last up to 14 days I was rung by the agency and told to leave the premises as my work since day 1 had been “unsatisfactory.”

I was told to submit my time card to their e-payment system and I did.  But the system declined the payment, stating that the work was “unsatisfactory to the client.”  I rang the agency several times to ascertain how the work was unsatisfactory but was not told.

Subsequently, I wrote to the agency requesting payment and enclosed an invoice for the four days’ work.  The agent then rang to say their compliance team would write to me stating the reasons for non-payment. The letter didn’t emerge. So I wrote to the compliance team who replied, citing clause 5.8 in my contract:

“The Company will only be paid where authorised time entry, invoice (where applicable) and expenses are submitted to [Agency’s e-system] within 60 Days of the date to which they relate (the “Deadline”). If relevant submissions are not made within the Deadline, [Agency’s] obligation to pay the Company will be dependent upon [Agency] first having received payment from the Client for the relevant period.”

So payment is subject to receipt of signed timecard, which in this case, the client has rejected as the work was ‘unsatisfactory.’ Interestingly, there was no mention of clause 5.9 as a reason for non-payment: “Payment is conditional upon the Company adhering to its obligations and specific compliance requirements as stated from time to time.  [Agency] reserves the right to suspend payment to the Company until such requirements and all other Company obligations have been complied with to the full and final satisfaction of [Agency].”

So there is no mention in either clause of non-payment if the work is deemed ‘unsatisfactory’. In my 10 years as an IT contractor, I’ve never had such a complaint about my work before this. Please advise where I stand and how I might proceed.

Expert’s Answer: First, you need to consider whether you validly opted out of the Conduct of Employment Agencies and Employment businesses Regulations 2003.  

To be valid, such an opt out (a) must be given both by you and by the company contracting for your services, AND (b) must be notified by the agency to the client; AND both of (a) and (b) must occur before the agency ‘introduces or supplies’ you to the client. To my mind, an interview is likely to constitute an introduction; and starting work is likely to constitute supply. The regulation seems to envisage that you may either simply be supplied to a client without first being introduced; or you may be introduced first.

If there is no valid opt out, then it seems regulation 12 operates so as to make it unlawful for the agency to fail to pay you for time you have actually worked, for any of the following reasons:

            (a) non-receipt of payment from the hirer in respect of the supply of any service provided by the employment business to the hirer;

            (b) the work-seeker's failure to produce documentary evidence authenticated by the hirer of the fact that the work-seeker has worked during a particular period of time, provided that this provision shall not prevent the employment business from satisfying itself by other means that the work-seeker worked for the particular period in question;

            (c) the work-seeker not having worked during any period other than that to which the payment relates; or

            (d) any matter within the control of the employment business.

So, if you did not validly opt out, that regulation seems to put paid to the agency’s clause 5.8.

If this is the case, your best starting point is probably the Employment Agency Standards Inspectorate, who can be contacted online.

Otherwise, I find it curious that there seems to have been no indication given to you as to in what respect the client considered your work ‘unsatisfactory.’ I would suggest that you press firmly for a specific answer to this question – and then (depending on the extent to which the answer you are given actually has credibility), consider taking legal action in the Small Claims Court.

Once you let it be seen that you are not going to simply go away and stop being a nuisance, you are much more likely to achieve your desired result.

The expert was Roger Sinclair, legal consultant at egos Ltd, a contract law specialist.

Editor’s Note: Related Reading –

Contractors’ Questions: Should I take my client to small claims court?

Beating the IT contract crunch: i) client cuts

Contractors’ Questions: Does leaving me unpaid reduce their right to IP?

Thursday 28th January 2016