Private Eye Eye Crossword 794 Tuesday...
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Employment Law
13 Answers
I was recently employed in an arts-based media role, freelance, for a short period.
The production boss made it very difficult for me to get the job done: being vague, changing the plans, mixing up the styles required etc. Then halfways through the job, his plan was scrapped by the big boss, and all my work was abandoned and I had to start again. This was obviously a struggle to get done by the deadline.
It worked out in the end but was not as a usual production would be done - on their part or on mine.
I feel it was their fault I was unable to do the job to the best of my ability : but now they are saying that as I didn't do the sort of job they had expected or do it in the manner they are used to that I am to be 'demoted' to a job title with a lesser fee. I worked extremely hard, despite all the messing about (which they initially apologised for doing!) the person who is doing this said twice they have gone over budget and have to make cuts somewhere, and this is what she decided.
Obviously there is a lot more to the story, but I feel I am being made a scapegoat to cover their over spending.
I have emails showing how much changing their was, their apologies etc as well as the fee arrangement.
My question is - can they do this?
I believe, if it went to court I would have a good case as I have clear proof of the situation, but are they within their rights to say I was not as good as previous employees and so reduce my agreed fee?
No contracts were signed.
They also only wish to pay me for 3 day instead of the 5 I worked, but I initially accepted that because the overall amount was large.
Thank You
The production boss made it very difficult for me to get the job done: being vague, changing the plans, mixing up the styles required etc. Then halfways through the job, his plan was scrapped by the big boss, and all my work was abandoned and I had to start again. This was obviously a struggle to get done by the deadline.
It worked out in the end but was not as a usual production would be done - on their part or on mine.
I feel it was their fault I was unable to do the job to the best of my ability : but now they are saying that as I didn't do the sort of job they had expected or do it in the manner they are used to that I am to be 'demoted' to a job title with a lesser fee. I worked extremely hard, despite all the messing about (which they initially apologised for doing!) the person who is doing this said twice they have gone over budget and have to make cuts somewhere, and this is what she decided.
Obviously there is a lot more to the story, but I feel I am being made a scapegoat to cover their over spending.
I have emails showing how much changing their was, their apologies etc as well as the fee arrangement.
My question is - can they do this?
I believe, if it went to court I would have a good case as I have clear proof of the situation, but are they within their rights to say I was not as good as previous employees and so reduce my agreed fee?
No contracts were signed.
They also only wish to pay me for 3 day instead of the 5 I worked, but I initially accepted that because the overall amount was large.
Thank You
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Your question isn't really about employment law because what you had was a contract for services. In other words, you delivered something to them and had an expectation of a 'consideration' (money) at the end.
For me it's all about whether you were contracted to attend for 5 days and help them deliver something, or whether you were to be paid to deliver an outcome. They are taking the latter view, and choosing to ignore that they may have made your task delivery impossible. Consultants suffer this all the time when clients change the parameters.
I would challenge them about it and confront them with the evidence you have. You will have to reach an agreement through negotiation. You have no employment rights - you were not employee. And I am sure you know now to always agree the fee up front. The best way to deal with this, especially if its a short term contract, is to turn around an email back to the client following the discussion setting out the key details including the fee - "Confirming an discussion yesterday etc..."
For me it's all about whether you were contracted to attend for 5 days and help them deliver something, or whether you were to be paid to deliver an outcome. They are taking the latter view, and choosing to ignore that they may have made your task delivery impossible. Consultants suffer this all the time when clients change the parameters.
I would challenge them about it and confront them with the evidence you have. You will have to reach an agreement through negotiation. You have no employment rights - you were not employee. And I am sure you know now to always agree the fee up front. The best way to deal with this, especially if its a short term contract, is to turn around an email back to the client following the discussion setting out the key details including the fee - "Confirming an discussion yesterday etc..."
Thanks for answering.
The fee was confirmed at the beginning and agreed on both sides. I always get confirmation before I start.
The days of work were specified initially as only 3, but it is clear from the emails that they expected me to work 5 and half - which I did, so they cannot deny I worked that amount of days.
I think I can either -
insist on being paid my original fee
or
Insist on, if I accept the lower fee, that I am paid for the whole 5 days : it works out to be about the same amount.
I am also considering asking to be paid the orginal rate - but extra for the the extra days, which bumps it right up.
I am not sure which approach to take - don't want to be unreasonable but also figure if they are now 'moving the goalposts', why shouldn't I?
And I am hoping that the fear that I may have a 'winnable' case and I may get the whole 5 days at full fee price, may make them just pay up the original amount.
I have got all the emails together and written a full explanation of what actually happening and why.
What do you think I should say?
Do you know of any legal jargon I can spout to make them think I am seeking legal advice?
I actually intend to seek advice, but would prefer not to and hopefully just 'force their hand'
I am also considering going above this girls head and telling the bigger bosses about this - I am sure they will not want their working behaviours dragged under the micropscope.
The fee was confirmed at the beginning and agreed on both sides. I always get confirmation before I start.
The days of work were specified initially as only 3, but it is clear from the emails that they expected me to work 5 and half - which I did, so they cannot deny I worked that amount of days.
I think I can either -
insist on being paid my original fee
or
Insist on, if I accept the lower fee, that I am paid for the whole 5 days : it works out to be about the same amount.
I am also considering asking to be paid the orginal rate - but extra for the the extra days, which bumps it right up.
I am not sure which approach to take - don't want to be unreasonable but also figure if they are now 'moving the goalposts', why shouldn't I?
And I am hoping that the fear that I may have a 'winnable' case and I may get the whole 5 days at full fee price, may make them just pay up the original amount.
I have got all the emails together and written a full explanation of what actually happening and why.
What do you think I should say?
Do you know of any legal jargon I can spout to make them think I am seeking legal advice?
I actually intend to seek advice, but would prefer not to and hopefully just 'force their hand'
I am also considering going above this girls head and telling the bigger bosses about this - I am sure they will not want their working behaviours dragged under the micropscope.
My Tax Law notes tell me that if you can answer yes to the following questions, you are probably an employee.
1. Do you have to do the work yourself?
2. Can someone tell you at any time what to do, where to carry out the work, or when and how to do it?
3. Do you work a set amount of hours?
4. Can someone move you from task to task?
5. Are you paid by the hour week or month?
6. Can you get overtime pay or a bonus payment?
From what you have said, it looks as though you would be assessed to tax as one who is self-employed. Therefore any remedy you may have will not be contained in employment law but in contract law. Perhaps HMRC can advise on how your taxed is assessed?
If the remedy is contained in contract law then the outcome will depend on the facts and circumstances and proof.
You don't have a written contract, but the terms and conditions may be demonstrated by implication. The fact you have supporting evidence to show that the reason why you could not deliver to the standard expected was because of ever changing demands, will stand you in good stead. Buildersmate is probably right that you may want to negotiate. Otherwise, depending on the amount involved, a small claims action may be a road you could go down.
1. Do you have to do the work yourself?
2. Can someone tell you at any time what to do, where to carry out the work, or when and how to do it?
3. Do you work a set amount of hours?
4. Can someone move you from task to task?
5. Are you paid by the hour week or month?
6. Can you get overtime pay or a bonus payment?
From what you have said, it looks as though you would be assessed to tax as one who is self-employed. Therefore any remedy you may have will not be contained in employment law but in contract law. Perhaps HMRC can advise on how your taxed is assessed?
If the remedy is contained in contract law then the outcome will depend on the facts and circumstances and proof.
You don't have a written contract, but the terms and conditions may be demonstrated by implication. The fact you have supporting evidence to show that the reason why you could not deliver to the standard expected was because of ever changing demands, will stand you in good stead. Buildersmate is probably right that you may want to negotiate. Otherwise, depending on the amount involved, a small claims action may be a road you could go down.
It's a tricky one. You'd make a good exam topic as it is difficult to identify your employment status. In saying that, I still say that a breach of contract has almost certainly occured. If in Scotland a small claims action can only be claimed upto the paltry sum of #750. I understand it is several thousand pounds in England & Wales though.
Thanks
What is my next move?
I have composed a letter, with a lot of information, but should I send it as is, and how should a sign off.
I want them to see I will not let it go, but don't want to be pushy.
I am, probably vainly, hoping they will see it for themselves and agree that things were not as they had first thought.
I do feel they are just trying to claw back money and that they know inside that they are out of order but think if the state it firmly enough I will just accept it.
Perhaps the fact that I did not complain at being messed about, has made them think I am an easy target.
I was also the only new person - they were all colleagues and friends etc, so I was the obvious 'choice'.
I need some good phrases so that they think I know my stuff and have done research or something.
thanks
What is my next move?
I have composed a letter, with a lot of information, but should I send it as is, and how should a sign off.
I want them to see I will not let it go, but don't want to be pushy.
I am, probably vainly, hoping they will see it for themselves and agree that things were not as they had first thought.
I do feel they are just trying to claw back money and that they know inside that they are out of order but think if the state it firmly enough I will just accept it.
Perhaps the fact that I did not complain at being messed about, has made them think I am an easy target.
I was also the only new person - they were all colleagues and friends etc, so I was the obvious 'choice'.
I need some good phrases so that they think I know my stuff and have done research or something.
thanks
To be honest, WDK, I liked your suggestion of taking the matter above the person seeking to reduce your fee. I did this years ago when I bought a car from a dealer that was faulty. I found a replacement car from the same company but from a different location and the original sales manager wouldn't give me the replacement car I was after. This was years before I went to study law.
So I called what I thought was their HQ (it wasn't) but did speak to a regional sales manager who was extremely helpful and I could tell he was pretty ticked off at what was happening. Within 30 minutes my wishes were being put into motion.
So you may find that someone above the person giving you the problem sees sense. I'd keep things low key and friendly...for now. Speak softly and carry a big stick - afterall, you may wish to do work for the company in future, if not this person in particular. Let them know you have the emails showing it was impossible to meet the standard expected due to the changes made at ever more demanding timescales. Don't give them the originals, but if asked, by all means give them copies. Then, if not successful, take a far more heavy handed and less concilliatory approach.
So I called what I thought was their HQ (it wasn't) but did speak to a regional sales manager who was extremely helpful and I could tell he was pretty ticked off at what was happening. Within 30 minutes my wishes were being put into motion.
So you may find that someone above the person giving you the problem sees sense. I'd keep things low key and friendly...for now. Speak softly and carry a big stick - afterall, you may wish to do work for the company in future, if not this person in particular. Let them know you have the emails showing it was impossible to meet the standard expected due to the changes made at ever more demanding timescales. Don't give them the originals, but if asked, by all means give them copies. Then, if not successful, take a far more heavy handed and less concilliatory approach.
Step 1
You need to establish whether you were contracted for the whole job for a fee, or whether you were paid at a daily rate to deliver the job. There's a subtle difference. If the latter, then whether the upfront agreement, such as it was, talked about a contract sum.
Step 2
IMHO you were definitely self-employed. And I don't recommend you follow Stu advice and go running to HMRC to ask about your tax position. What he is quoting you are the IR35 guidelines for the assessment of NI and tax at source. Financially its normally in your interests to be self-employed for this.
Step 3
Don't write a letter but assemble the key points and ask for a meeting. Though that may be hard to undertake because you have to think on your feet, if you do your preparation you are more likely to end up with a satisfactory result.
You need to establish whether you were contracted for the whole job for a fee, or whether you were paid at a daily rate to deliver the job. There's a subtle difference. If the latter, then whether the upfront agreement, such as it was, talked about a contract sum.
Step 2
IMHO you were definitely self-employed. And I don't recommend you follow Stu advice and go running to HMRC to ask about your tax position. What he is quoting you are the IR35 guidelines for the assessment of NI and tax at source. Financially its normally in your interests to be self-employed for this.
Step 3
Don't write a letter but assemble the key points and ask for a meeting. Though that may be hard to undertake because you have to think on your feet, if you do your preparation you are more likely to end up with a satisfactory result.
Well, I've read this several times now and it still seems a bit confused.
If you have agreed a fee and have delivered what you were contracted to, then you invoice for that figure and, if they want a reduction, then they would need to explain why. Ultimately you could take legal action to recover any sums you feel you are being wrongly withheld.
I'm not sure whether you mean that any future work would be at a lower rate or they are trying to renegotiate your fee for the work done. If it's the former then, as a freelancer, you can simply walk away. If the latter then proceed as above.
Take buildersmate's advice, ask for a meeting and explain your position.
If you have agreed a fee and have delivered what you were contracted to, then you invoice for that figure and, if they want a reduction, then they would need to explain why. Ultimately you could take legal action to recover any sums you feel you are being wrongly withheld.
I'm not sure whether you mean that any future work would be at a lower rate or they are trying to renegotiate your fee for the work done. If it's the former then, as a freelancer, you can simply walk away. If the latter then proceed as above.
Take buildersmate's advice, ask for a meeting and explain your position.
thanks
The fee was a set daily rate for 3 days work - thurs,fri, sat.
As it turned they expected me to start immediately on the monday - the emails asking me for things etc clearly prove this, and it was just as well I did, due to all the mid way changes.
They are not only lowering the fee, but are only counting the 3 days.
It is also clear from the emails that I often worked well into the evening, sending emails, images etc at 10-11 at night, so they cannot claim I did not put the hours in.
A meeting is not possible as they are on the other end of the country, and also I feel it would not go well - this girl is very snotty and argumentative.
I feel she is going on the blame shifting and outcome, not what happened in between.
There is also a lot to say and I know I would either forget to mention it or get talked over, so I thing a letter would be best - it is quite long due to the extent of the problem - it also includes copies of emails backing up what I am saying.
This was a single job, no future or prior stuff.
In terms of explaining why, it is simply viewed from their point of view - i.e,
a certain item wasn't the one requested, so in their eyes I have not done the job properly - the fact that I had got the item at the start, it was correct and okayed, and then the day before, the item spec was changed, and I simplky didn;t have time to research, locate and purchase the new items - especially since I was required also to identify the equipment item from a music video, sent to me in a link that would not work - a specific style, brand and type!
- this is the problem here. This sort of thing happened numerous times.
I had planned my working week, when each thing would be tackled to make full use of shop opening hours etc, but they kept demanding I do thing when they wanted and changing things so I ended up wasting about 2 whole
The fee was a set daily rate for 3 days work - thurs,fri, sat.
As it turned they expected me to start immediately on the monday - the emails asking me for things etc clearly prove this, and it was just as well I did, due to all the mid way changes.
They are not only lowering the fee, but are only counting the 3 days.
It is also clear from the emails that I often worked well into the evening, sending emails, images etc at 10-11 at night, so they cannot claim I did not put the hours in.
A meeting is not possible as they are on the other end of the country, and also I feel it would not go well - this girl is very snotty and argumentative.
I feel she is going on the blame shifting and outcome, not what happened in between.
There is also a lot to say and I know I would either forget to mention it or get talked over, so I thing a letter would be best - it is quite long due to the extent of the problem - it also includes copies of emails backing up what I am saying.
This was a single job, no future or prior stuff.
In terms of explaining why, it is simply viewed from their point of view - i.e,
a certain item wasn't the one requested, so in their eyes I have not done the job properly - the fact that I had got the item at the start, it was correct and okayed, and then the day before, the item spec was changed, and I simplky didn;t have time to research, locate and purchase the new items - especially since I was required also to identify the equipment item from a music video, sent to me in a link that would not work - a specific style, brand and type!
- this is the problem here. This sort of thing happened numerous times.
I had planned my working week, when each thing would be tackled to make full use of shop opening hours etc, but they kept demanding I do thing when they wanted and changing things so I ended up wasting about 2 whole
One of the big issue for her was because I didn't dothings the way other people have done them before - She never told me how she wanted it done and never told me she had a problem with the way it was going.
She expected me to get the brief then get everything on it within a day - she even stated she had known people who had done it within a few hours!
The problem with doing that is that in London it is easy - there are the right sort of places all over the place, here there is only a few.
He also wanted everything 2 tone - a specific mustard yellow and black.
Mustard yellow is not an easy colour to find in furniture so we could not hire stuff as it needed to be painted the exact shade on yellow on pg 331 of Elle magazine... with aroung 15 different ''buzzwords'' of style that all contradicted each other, it was becoming difficult to grasp what they wanted.
They tried to claim I am inexperienced, but I have been doing this for years and presumably they saw my CV, so in my view it is their responsibilty to ensure I understand their needs.
I cannot help it if I simply couldn't work with their 'directions', and do things differently
He said he wanted to get some stuff himself - which he did, none of it fitted the brief I had been given, none of it was yellow - and he didn't use ANY of it!
She expected me to get the brief then get everything on it within a day - she even stated she had known people who had done it within a few hours!
The problem with doing that is that in London it is easy - there are the right sort of places all over the place, here there is only a few.
He also wanted everything 2 tone - a specific mustard yellow and black.
Mustard yellow is not an easy colour to find in furniture so we could not hire stuff as it needed to be painted the exact shade on yellow on pg 331 of Elle magazine... with aroung 15 different ''buzzwords'' of style that all contradicted each other, it was becoming difficult to grasp what they wanted.
They tried to claim I am inexperienced, but I have been doing this for years and presumably they saw my CV, so in my view it is their responsibilty to ensure I understand their needs.
I cannot help it if I simply couldn't work with their 'directions', and do things differently
He said he wanted to get some stuff himself - which he did, none of it fitted the brief I had been given, none of it was yellow - and he didn't use ANY of it!
OK, you've included lots of very valid details in your responses above, and also we've established a meeting is pretty impossible, so you will have to write a letter.
I think we have also established you were contracted on a daily rate for 3 days, but did 5 long days. Now they are trying to pay you for the 3 days but at a daily rate that is less than what was agreed.
Without anything to say that they would pay more for >3days work, I think you are in a weak position on that front, but there is no reason not to try.
I would write a letter as follows:
Dear XYZ, please find my attached invoice for �PQR, representing 5 days work at the previously agreed daily rate of �FGH per day. As we have discussed earlier this was a particularly challenging assignment and there were a number of unexpected difficulties in delivering to your requirements. This resulted in me working very long days over each of the five day period to meet your specification. The assumptions on which the estimate of the length of the assignment were thus severely flawed. I would be pleased to provide you with further evidence should you need it, but these requirements were totally out of my control. Nevertheless I was contracted by you at a nominal 8 hour daily rate, and I delivered five days work. I am therefore prepared to waive the additional hours worked into the eveings provided that I receive payment in full for the invoice submitted.
This appears to be giving something to them; you have to hold the line at demanding 5 days times the daily rate you negotiated. The worst case fallback is that they probably feel they owe you 3 days times the daily rate. I wouldn't get into the detail of what went wrong in the first letter - wait and see what they do.
I think we have also established you were contracted on a daily rate for 3 days, but did 5 long days. Now they are trying to pay you for the 3 days but at a daily rate that is less than what was agreed.
Without anything to say that they would pay more for >3days work, I think you are in a weak position on that front, but there is no reason not to try.
I would write a letter as follows:
Dear XYZ, please find my attached invoice for �PQR, representing 5 days work at the previously agreed daily rate of �FGH per day. As we have discussed earlier this was a particularly challenging assignment and there were a number of unexpected difficulties in delivering to your requirements. This resulted in me working very long days over each of the five day period to meet your specification. The assumptions on which the estimate of the length of the assignment were thus severely flawed. I would be pleased to provide you with further evidence should you need it, but these requirements were totally out of my control. Nevertheless I was contracted by you at a nominal 8 hour daily rate, and I delivered five days work. I am therefore prepared to waive the additional hours worked into the eveings provided that I receive payment in full for the invoice submitted.
This appears to be giving something to them; you have to hold the line at demanding 5 days times the daily rate you negotiated. The worst case fallback is that they probably feel they owe you 3 days times the daily rate. I wouldn't get into the detail of what went wrong in the first letter - wait and see what they do.
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