Breached notice period

[Jeebsy]

I handed in my notice last month and was reminded I had to work 20 days under the contract.

I was off sick Monday and Tuesday then finished today. The agency called to say as I only worked 18 days i've breached the contract and they're going to take two days pay out what they owe me.

The contract says:

The Contractor may terminate the contract on 20 worked days notice to Agency X

NOTES:

Failure of the Contractor to provide sufficient notice in accordance with this Contract for services without prior agreement with and confirmation (in writing) from Agency X will result in payment in lieu of notice being charged. When an offer of contract extension is made, a minimum of 20 working days notice is required before the expiry of your contract, of your decision to accept or decline. This is to facilitate client project planning.

I said on the phone if they could show me what their actual financial loss is I would pay it but taking two full days was steep. The contract isn't specific about what will be charged. I said their loss would just be the commission but they said the client charges them a penalty if people breach their notice.

Is this worth arguing? I'm so glad to be out of that contract it might just be worth taking on the chin to get finished with them, but then again i'd rather not lose two days pay if possible.

[malvolio]

contractor and off sick? Sorry, does not compute...

But seriously, I assume you didn't charge the two days you were off sick? And on any reasonable commercial basis they are only entitled to their margin anyway, not the whole amount.

Personally I'd sue them for non-payment.

[Jeebsy]

Didn't charge for the two days off so i'm two down for that plus another potential two they want for breach of notice.

After I told them i'd pay their actual loss they sent me a letter reiterating their position:

Contractor advised us by phone today that he was unable to fulfil the remainder of the notice period, and is aware from conversations with members of our project team that this is deemed as a breach of contract and that Agency X would withhold part of Contractor's Ltd Company's invoice as payment in lieu of notice. As your Personnel wishes to leave the Project within the notice period today, 2 April 2014, Agency X will be withholding two days’ rate from Contractor's Ltd Company's invoice as payment in lieu

[craig1]

You signed the contract... you provided 18 WORKED days of notice. The contract is quite precisely worded on WORKED instead of WORKING.

You could sue for part-payment of your invoice as it was, I assume, a legally valid invoice against a properly signed timesheet. Their counter would be to show the contract and that they were taking a short-cut of deducting their "payment in lieu of notice" fee from the money they owed you rather than suing you for breach of contract. Most small claims court judges would just shrug and either throw the thing out or issue a zero sum judgement with costs against you for being the party that actually breached the contract. You COULD argue that they only deserve their agency cut paid because the contract is imprecise but courts tend to side with the innocent parties on breach of contract cases, you're stone-cold caught by this one.

In summary, it's probably easier to bite the bullet of losing the money. I assume we're not talking high 4 figure day rates where it would be worth pursuing it...

[Bellona]

You signed the contract... you provided 18 WORKED days of notice. The contract is quite precisely worded on WORKED instead of WORKING.

You could sue for part-payment of your invoice as it was, I assume, a legally valid invoice against a properly signed timesheet. Their counter would be to show the contract and that they were taking a short-cut of deducting their "payment in lieu of notice" fee from the money they owed you rather than suing you for breach of contract. Most small claims court judges would just shrug and either throw the thing out or issue a zero sum judgement with costs against you for being the party that actually breached the contract. You COULD argue that they only deserve their agency cut paid because the contract is imprecise but courts tend to side with the innocent parties on breach of contract cases, you're stone-cold caught by this one.

In summary, it's probably easier to bite the bullet of losing the money. I assume we're not talking high 4 figure day rates where it would be worth pursuing it...

+1
It is clear they expect you to work 20 days or have any days not worked deducted in lieu. IMO, unless the 2 days equate to a substantial amount, I would move on, chalk it up to experience, and not get caught by it again.

Good luck with your next gig.

[SueEllen]

I said on the phone if they could show me what their actual financial loss is I would pay it but taking two full days was steep. The contract isn't specific about what will be charged. I said their loss would just be the commission but they said the client charges them a penalty if people breach their notice.

I would chase them in writing and ask for proof in writing that the client charges them a penalty for you not working. Inform them if they don't provide it in X days you will take legal action.

Only if they refuse to put the information down in writing* then go after them in the small claims court for the two days.

I can put anything I like down in a contract (there are limits of course) but I must prove it's reasonable when challenged or I can expect to be taken to court.

I can also deny or change what I say on the phone but can't change what a letter or email says if the other party can prove they sent it to me.

*You need to be able to prove they got your correspondence so don't just send an email or a normal letter by post.

[northernladuk]

The two days just happened to be the last two days of the contract? Seriously? I can't help but think they probably think you are taking the piss and are making a point. If you had two days the week before I bet the wouldn't have thought twice about it.

[Jeebsy]

They do this with everyone and are strict about it. Some people just left without serving an notice and lost a full month's invoice.

Seems a bit of a split in opinion, might send one firmly worded email and if they're not receptive just drop it.

[northernladuk]

I would chase them in writing and ask for proof in writing that the client charges them a penalty for you not working. Inform them if they don't provide it in X days you will take legal action.

They will say 'Go on then'

Only if they refuse to put the information down in writing* then go after them in the small claims court for the two days.

Why? they are technically in the right. The only argument is the amount so likely to go against the contractor.

I can put anything I like down in a contract (there are limits of course) but I must prove it's reasonable when challenged or I can expect to be taken to court.

But it never happens so can't use court as a route to getting this resolved.

I can also deny or change what I say on the phone but can't change what a letter or email says if the other party can prove they sent it to me.

*You need to be able to prove they got your correspondence so don't just send an email or a normal letter by post.

And they point out the timesheets and the contract and it's game over.

I see what you are getting at and in some cases it's a viable route. I do not think it is in this one.

[northernladuk]

They do this with everyone and are strict about it. Some people just left without serving an notice and lost a full month's invoice.

Seems a bit of a split in opinion, might send one firmly worded email and if they're not receptive just drop it.

And what do you think the response to your firmly worded letter will be? Hey, it's your time though so fill your boots.