Can I invoice before the start of a contract?

I have been invited to provide some legal input into this situation --  I will simplify it as “Can I invoice before the start of a contract?”

For those ContractorUK readers who don’t know me, I’m a lawyer who has specialised in the contractor ‘space’ for the past 30 years – going back to way before even IR35. 

And, fairly early on, writes Roger Sinclar, legal consultant at egos, I developed three rules for contractors – you can find them on my website, but I’ll repeat them below.

Three rules contractors should live by and contract by

Rule 1: Make sure you understand the contract and all its implications before you sign.

Rule 2: Treat everything in the contract as negotiable until you sign. And don't be afraid to negotiate! 

Rule 3: Don't leave home without it - make sure all terms are agreed and signed before you start work.

‘Billing before the start of a contract’

Looking at the initial post about this situation (entitled “Billing before the start of a contract”), I have to say that it doesn’t give me enough information. I need to have more in the way of facts, and to have the chance to read all the correspondence.

At least, I’d need to have both of those things to offer a definitive answer to the question posed, which, paraphrased, is:

“I secured a contract with a government client who supplied a laptop for me to start some of the onboarding steps -- but the full-time I’ve had to invest in the steps is approaching four weeks.

“So what are my rights if it all ended with no contract and no work; should I ask now to be paid?”

PMO team, HR, and onboarding

More specifically, the ContractorUK forum user says that after being supplied with the client-laptop “to start some of the onboarding steps,” they are spending “full time” on it because of ‘poor response times from the client’s PMO team.’

Well, “Onboarding” to me is one of those fluffy HR terms which means what the person who utters it wants it to mean -- some might go further, and say it is therefore devoid of any real meaning. 

‘Onboarding’ services to be provided? Probably not…

But I’d bet that the OP wasn’t approached to enter a contract where the services to be provided would be described as “onboarding.” So I’m assuming that no actual work has been done (even if I am quite curious about how “onboarding” might be a full-time task).

Nonetheless, as the forum user asked, what are the rights of a contractor in this situation?

When you want to charge for pre-work tasks: the legal position

If no actual work has been done, then to my mind it is unlikely that, absent a signed contract, there is a right to be paid for that. Not impossible, but pretty unlikely.

If, on the other hand, some actual work (as opposed to “onboarding”) had been done, with the knowledge and consent of the other party, that might – might – be a different matter. 

I am not going to rule out the possibility that, in such circumstances, there might be an enforceable contract, incorporating a right to payment. Particularly if a contract in draft had been issued by the other party (even if not signed).

Implicit that a reasonable rate would be paid?

And even if a rate had not been expressly agreed, there are circumstances in which one might be able to argue that it was implicit that a reasonable rate would be paid, or a reasonable sum for the work that was actually done.

As to what “reasonable” means in this context? Well, the advertised rate might well be a suitable starting point. Again, though, I would need to see the full background.

With 20/20, you’d insist on pay before powering up the laptop

 With the benefit of hindsight, I’d agree (with some of the replies that the OP received) that it might have been wiser to insist on a contract before turning on the laptop.

But -- to the contractor, I’d say, ‘You are where you are.’

3 next steps where the ‘pay me for onboarding’ ship has sailed

Therefore, I suspect the best approach now is to:

1. Pressure the recruitment agency (and, if you have direct contact, the consultancy) for a firm proposal supported by an actual contract, before spending any more time on this “onboarding,” and;

1. Start/don’t stop looking for another contract – and;

1. Make sure the agency knows (b), i.e. until a contract is actually agreed and signed, you cannot regard yourself as committed.

‘Can I deny to return laptop unless not paid?’

As to the final question from the OP -- can they, or should they keep the laptop unless paid, presumably as some sort of compensatory payment in kind for the time outlay?  Or as they ask, “Can I deny to return laptop unless not paid?”

Attractive though that idea might appear at first sight, to retain what, after all, is someone else’s property -- or even to threaten to do so -- would be a potentially dangerous course of action. 

The fact that you are provided with a piece of equipment to do something doesn’t give you any more rights than that -- to do with it the ‘something’ for which it was provided to you. It would be unlawful, some might argue potentially criminal, to do that.

Final thought

And it would be unlikely to advance your career -- including your career beyond this government client, which is where I suggest your focus ought to be, should you want an engager that actually values your time.