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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 65039
Experience:  Qualified Solicitor
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Ben, I remember you helped me out with employment issue

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Hi Ben,I remember you helped me out with employment issue before, could you look at my question I've raised today?
Let me know if I could copy it to this chat or you can see all the questions I've raised.

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

Please do copy the question in to this chat and I will take a look. Many thanks

Customer: replied 15 days ago.
I'm a director of Ltd company working alone on freelance basis. My last assignment I've been working for more than 6 months for one of the company and I've been there through Agency. Everything was fine with payments, but last Friday (20.03.20) I've finished work there because ofall the situation all works been on stop. There's still one last invoice that I haven't been paid for and as I'm waiting for it to be approved today I've received a call from agency that I've been contracted that the company I worked through is refusing to sign my timesheet because I've damaged a piece of equipment and they want to deduct around £1000 to cover the costs.
It's really weird that they haven't contacted me directly, but through agency. Whole time I was dealing all things with them and not the agency. When I've left they sent me really good emails with how happy they were with my job and that they are sad I'm gone (just weird).
I feel that it's a hard time for everyone now and they just trying to save some money by doing that. I obviously don't want to loose money. What rights do I have? I have to say that I don't agree with damaged equipment (it's a surveying prism). Yes I've been working with it for last 6 or more months, but it was perfectly good and I haven't damaged it. Do they need to prove anything or they can just say that I've did it and that's it?
As well if it comes to situation where they will say that it was damaged by me. Should it be something they should claim from insurance and not from the invoice? I have business insurance, the agency I'm contracted to them have insurance and I bet they have their own insurance, so plenty of cover.
I haven't spoke with them yet, just got the call from agency that I should speak to them about this situation, so just wanted to check what options do I have?
I have attached a contract I have when I've started with this agency (It was a weeks contract and I was working on different assignment after for 6+months but with same contract)

Thank you. What are you ideally hoping for in the circumstances?

Customer: replied 15 days ago.
Ideal situation to call/email them and just state that they don't have any rights to do that and they need to pay full invoice. They listen and pays.
Other situation is to say that if they want to claim they need to claim it from agency that I've been assigned from. Or from my business insurance.
I'm just thinking what's their leg to stand on? Can they just say I've broken something with no proof, no record and that's it?
I actually hate that good relationship need to be broken, but I can't just leave it this way.

Thank you. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Thank you. Can I check of there is anything anywhere which says they can deduct any such damages from your pay?

Customer: replied 15 days ago.
I've attached you the only contract that I have. It's actually long expired and not even with company I've worked with. It might be that Hays have signed a new contract with this new company, but haven't send it to me and I was just working on the same basis as the previous contract that is attached.
Customer: replied 15 days ago.
Hi Ben,
Please find attached a contract I have signed between my company and Agency.

Thanks for that. As it is an unprecedented time with the volume of questions I won’t have time to look at the contract at this time unfortunately. You are more than welcome to have a look yourself to see if you can find anything on that point and let me know if you can then at least I can look at it without much of a delay as I would know where in the contract it is. Thanks for your understanding

Customer: replied 15 days ago.
That totally makes sense.
I'll copy you sections of contract where this case might be affected.
First:
There's no Assignment confirmation with the client I've worked for last 6+months, but I've been advised that terms are same as it was before that. (And there's nothing on that agreement saying about deductions etc.)
Second:
There's agreement between my Ltd company and Agency and it's much more detailed. I've found few sections that might say that my company can be liable for damages, please see below and comment

3.7 The Company shall have in place, policies of insurance of sufficient value
to cover the provision of services pursuant to the agreement, including but not
limited to Employers Liability, Professional Indemnity and Public Liability and
which shall cover any loss suffered or incurred by the Employment Business
and/or the Client and their respective officers or employees or any third party by
the act of negligence or omission of the Company or the Relevant Consultant.
The Company shall at its own expense effect and maintain such insurance as
is deemed appropriate in respect of its obligations under the Assignment and
provide evidence of the same on demand. For the avoidance of doubt, the
Company providing evidence of the insurance is not a waiver of any nature by
the Employment Business or the Client of their rights under this Agreement.

4.4 To the extent permitted by law, and without prejudice to any other legal
remedy which the Employment Business may have, the Company hereby
consents to the deduction from any sums owed by the Employment Business to
the Company under this Agreement from time to time, any sums owed from time
to time by the Company to the Employment Business (which may include any
overpayment by the Employment Business to the Company and the recovery of
any costs incurred by the Employment Business as a breach of this agreement).

10.1 Notwithstanding any other provision of this Agreement, but subject to
clause 10.3 below, the Employment Business shall not be liable to the Company
arising out of or in connection with this Agreement and for the provision of (or
any delay in providing or failure to provide) the Assignment for (i) any loss of or
damage to profit, revenue, savings, data, use, contract, goodwill or business or
(ii) any indirect or consequential loss or damage, in each case howsoever
caused or arising, including but not limited to any loss or damage suffered by
reason of any act or omission of the Client.

10.5 Notwithstanding any other provision of the terms of Assignment, the
Company shall indemnify and hold harmless the Employment Business and the
Client and their respective officers, employees and agents or third parties from
and against any and all claims, demands, losses, liabilities, damage, costs and
expenses (including legal expenses) whatsoever and howsoever arising in
relation to or in connection with the provision of services by the Company and
Relevant Consultant (including substitute) whether the same is intentional,
reckless, negligent or merely inadvertent.
Customer: replied 15 days ago.
Hi Ben, I know you're busy, but I wanted to send an update about the situation.
First I want to understand who actually owes me? The client I worked with and that is refusing to pay my invoice and want to deduct £1000 from it or it's agency that I actually contracted with? Who I would need to claim money from?
So the situation is that my business insurance doesn't cover the damage of equipment that was lent to me during my contract.
I'm not agreeing with damages as they might to equipment as they haven't affected any work for me and equipment might be damaged before I've started working with it.
There's a picture of damaged item, but there's no proof of how it looked like without damage.
One major this is that company is actually still having this item and using it. That item is hired by them from agency and agency is not aware of it. So that means that they want to claim money from me, but no one actually claimed from them, that's definitely not right

I want to know what should I do? Should I send reminder to pay? And is that need to be sent to agency or the company? Or is there any other procedure I should follow? Please advise.

Many thanks for your patience and for the clauses. So whilst here are clauses which could potentially allow the deduction for damages, it does not men they can just make the deductions and not be held accountable in the event you dispute them. In other words, if you dispute these charges, you have the right to be provided with the relevant evidence on which they have based their decision.

 

However, despite this, they can still refuse to do so and you cannot force them to. If that was to happen, then you have to consider how confident you are that you had not caused the damage. In that case it may be worth making a claim in the Small Claims Court and they would then have a legal duty to disclose whatever evidence they have.

 

In terms of who you claim against, it would depend on who your contract was with. If your contract was always with the agency only and they are the ones who pay you directly (after receiving the money from their client), then it is the agency you would be claiming against.

 

Does this answer your query?

Ben Jones and 4 other Law Specialists are ready to help you
Customer: replied 15 days ago.
I'm sorry, but it's just a complicated situation, where I'm getting a lot of questions.
One last thing I want to ask. As per your confirmation it's the agency that been paying me and I have contract with. In this case Agency is getting money from client I'm getting money from agency when client signs my timesheet (client is refusing to sign the timesheet and want a deduction). Does this matter suppose to be between my company and agency and between agency and client and not between my company and client? And does that mean that I would need to be paid for my work from agency and agency would then need to claim it from client (and any deductions that they agree will then need to be raised up by agency to my company?)
If I'll get any more questions I'll raise you another query. Thank you a lot.

Do you know if you opted out of the Agency Regulations?

Customer: replied 15 days ago.
I don't know, how can I find out? The only thing I've signed was Terms of Assignment that I've attached before. And only thing about Opting out in terms is:
12. Opt-Out
The Company shall give notice to the Employment Business of any
agreement reached between the Company and the Relevant Consultant
pursuant to Regulation 32(9) of the Conduct of Employment Agencies and
Employment Business Regulations 2003 as amended from time to time.

Thank you. The clause only says that once a decision has been about it, it will be communicated to the company but we do not know what that decision as. The important thing about it is that if you had opted out the agency is not liable for your fees if the company does not pay them or approve your timesheets, but if you did not opt out, they would still have to pay you regardless.

Customer: replied 15 days ago.
I see. I haven't signed anything else than terms of agreement. But I'll double check with agency.
So if I haven't signed opt out, then I need to deal with agency and if I did opt out, then I need to deal with client and agency doesn't have anything to do with it? Am I right?

In both cases you deal with the agency but the opt out determines their liability

Customer: replied 15 days ago.
I see. Thanks for your help to understand my position. Hope I'll be able to sort out this now.

You are most welcome