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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46213
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Good afternoon I need some advice on legal position for

Resolved Question:

Good afternoon
I need some advice on legal position for contract for service.
We had a freelance fashion designer who was on a contract of 6 months (clause 3) but due to non-performance we terminated the contract early. She is now taking this matter to court (as we have not been able to reach settlement) on the basis of early termination (i.e. before 6 months)
I need to know if there is a legal ground for her to do so as my understanding has been that a freelance contract can be terminated early without any compensation being payable. I shall be grateful for your advice on the matter.
I have copied main clauses of the signed terms and conditions below
1. Daily rate is £150-00 per day – The hours of one working day is 9am-5pm, Monday - Friday. Or 8 hours daily. Payment will be given on the last agreed day of the SAME week worked.
2. Any time before and after the hours of the specified ‘working day’ will be time and a half. – billed on an hourly basis.
3. Employment with the company will be for a minimum of 6 months under the terms of this freelance agreement or within a permanent contract.
4. Any extra expenses accrued will be paid on proof on receipts in the same working week as spent. Car use within work hours – for example visiting suppliers and Customers – mileage will be billed at 0.45p per mile (in accordance with government guidelines).
5. When there are times that working from home is appropriate, the day rate is the same BUT excludes paper and inks required to print artwork. These consumables will be presented as proof of a receipt.
6. Stationary including paper, pens etc. will be provided by the Company employing Miss ABC
7. Miss ABC will not ‘cross over’ same ‘Customers’, whilst working freelance.
8. Deadlines will be met BUT a realistic time frame has to be given and changes to the time frame will be realistically managed by Miss ABC
Any assistance will be appreciated.
Submitted: 11 months ago.
Category: Employment Law
Expert:  Ben Jones replied 11 months ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. What was the non-performance and wad there any clause allowing for early termination?
Customer: replied 11 months ago.
There were number of issues with main ones being1. The number of orders she was getting in on her fashion samples were no way near justifying the fees she was paid
2. Her attitude with other staff members as well as boss wasn't good and simply rude to say the leastThere was no clause for early termination. The agreement was mainly terms and conditions indicated above.
Expert:  Ben Jones replied 11 months ago.
has a formal claim been issued in court?
Customer: replied 11 months ago.
Yes it has been issued
Expert:  Ben Jones replied 11 months ago.
Thank you. It is incorrect to state that contractors can be terminated early with no notice period. This could be the case if there was a cause allowing that in the contract, but in the absence of such, some notice period would be due. Whether a self employed worker is entitled to a notice period will depend on their contract. If there is a termination clause that specifies a notice period on termination, the employer would be expected to give that notice if they wish to end the employment relationship. However, it is often the case that no written contract exists, or there is no notice clause in it. In such situations, the worker can still expect a 'reasonable' notice period to have their employment terminated. This is because even in the absence of a written contract they will be working under an implied common law contract and to terminate such a contract a reasonable notice period is required. This is especially the case if the contract for a fixed term because contractually you would be bound to see them through to the end of that period. The only exception is if the contract was terminated because of gross misconduct, that is any misconduct serious enough to justify the employment relationship terminating immediately. Poor performance is not in itself grounds for gross misconduct. What is a reasonable notice period will vary greatly and will depend on the individual circumstances, industry practices, length of employment, frequency of payment, etc. There are far too many variables to consider, which means it is usually impossible to give a precise indication as to what would be reasonable in each case. It is therefore down to the courts to make that decision. So you may wish to consider trying to negotiate some sort of settlement if possible or let the court decide. I'm sorry if this is not necessarily the answer you were hoping for, however I do have a duty to be honest and explain the law as it actually stands. This does mean delivering bad news from time to time. I hope you understand and would be happy to provide any further clarification if needed. If you are still satisfied with the level of service you have received I would be grateful if you could please take a second to leave a positive rating by selecting 3, 4 or 5 starts at the top of the page. Thank you
Customer: replied 11 months ago.
Thank you for your detailed and useful response.In order for me not to repeat the same mistake in future, would it suffice for me to include an additional term as follows in future contracts“The contract can be terminated by either party immediately for any reason, whether a breach of contract has occurred or not”.Although your response do refer to minimum notice period under implied common law contract but I assume this is only if no written contract exists. Is this correct?My understanding has been that if someone is a genuine freelancer and not an employee, then there is no legal minimum notice periods either party has to provide each other to terminate the contract early, or at its natural end. Of course, the exception is when there are notice rights mentioned or termination clauses in the agreement.Please correct me if my understanding is not right.
Expert:  Ben Jones replied 11 months ago.
Hi, it is incorrect to assume that freelancers and their employers are not bound by notice periods on termination. As mentioned there is likely to be an implied requirement to give notice on termination and the length of such notice will depend on various factors such as invoicing cycle, importance of contractor to the business and so on. What you may be referring to is that under statute they are not entitled to a minimum notice period and that is correct, but under common law there is likely to be an implied notice period requirement. You may indeed try and remove such implied notice requirements by having a specific termination clause which specifies how a contract can be terminated early. Try to avoid having the right to terminate it immediately and with no notice at any time, instead have some notice period, even if it is a week, so you can show that at least some notice was given. If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46213
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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