Should I invoice for downtime?

Contractor's Question: I was interviewed and then hired by an agency to work on behalf of the agency (contract is with the agency) at the end-client's site. But there was a mix up with the roles; as in the project manager thought he would have someone to complete role A and I was there to complete role B. Therefore I am no longer a requirement, and it is an entirely different role to what I usually do.

However, my contract has still not been terminated and I've been asked to sit at home and wait for a phone call to inform me of what is happening. Although I am not in the office and not working, I feel this is not a mistake that I have made, so am I within my rights to invoice for this week, and if they do terminate the contract today, should I also invoice for the termination period?

Expert's Answer: From what you say, you have entered into a contract with the agency to perform work for the end client but, due to a mix-up over roles, they no longer want to go ahead. However, rather than terminating the contract, they have asked you to stay at home and wait for a phone call to inform you what is happening.

Obviously, while you are sitting at home waiting for the phone call, you cannot obtain alternative work. If you did so, and they then instructed you to go in and perform some other task, you would be in breach of contract if you could not do so.

You should therefore invoice for your time sitting at home before they terminate the contract. You would also be entitled to invoice for the termination period once they do indeed terminate your contract, although you are under a duty to then look for other suitable work and, if you find it before the termination period expires, you cannot generally invoice for your time after you take on the new position.

The expert was Gary Cousins, solicitor and co-founder of Cousins Business Law.

Wednesday 15th Sep 2010