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JGM, Solicitor
Category: UK Employment Law
Satisfied Customers: 9973
Experience:  30 years experience as a solicitor.
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I need advice re: not working notice period in IT contract

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I need advice re: not working notice period in IT contract


I would like to know how much it would cost me if the agency were to take legal action

-Could you explain your situation a little more?

Customer: replied 3 years ago.

I'm an IT contractor currently on a 6 month contract which ends 6/09/2013. My contract states I have to give notice of 4 weeks, however I need to leave in 1 week and have said as much to the agency. They are not happy as aren't the client who are threatening legal action for breach of contract.

I have tried to negotiate with the agency but they are being 'told' by the client to enforce the 4 week notice in my contract.

I have tried to action the 'right to substitution' clause in my contract but the agency flatly refuse for me to do it as they say the client won't accept it?! Also, I didn't actually physically sign the contract but I understand that starting the work is equivalent to actually signing the contract??

Basically I want to leave asap but don't want to end up with a massive bill for legal costs for breach of contract - that's if they actually pursue it.


Hope that helps.


What does the substitution clause say specifically?
Customer: replied 3 years ago.


The Supplier may provide a substitute to carry out the Services in place of the Authorised Personnel at any time with the written consent of the Company.

Me being the Supplier, the Company being the agency.

That won't help as you haven't got the consent of the company. The contract is binding if you started work under its terms and conditions even if unsigned.

My view Is that you have a problem if you leave after a week. There is obviously an element of specialism in what you do and an element of delectus personae, ie, it's you they want, not someone else.

If you leave you open yourself to a damages claim for losses arising. That would mean any losses because they had no person like you on site and also the difference in cost of replacing you of your replacement is more expensive. Any project that could not be continued and had to be restarted may be charged to you as well.

You will have to weigh up the risks as to whether they will follow this through or not. They do have to minimise their losses so one way to deal with this is to offer a substitute. As a matter of contract they don't have to accept a substitute but if they don't you could argue that they haven't suffered any loss as you offered a substitute which gave them continuity which they refused to accept.

That is your best argument here.
Customer: replied 3 years ago.

Thank you for that.


Just as an aside, yesterday I was in the process of a hand over to a permanent member of staff who will be carrying on the piece of work I started and will be continuing with this hand over next week, and they will be completing this work once I have left.


I suppose it's debatable if the work is that specialised really, but the reason for the delectus personae is more of a personal thing, as the Project Manager is trying everything in his power to stop me leaving before the 4 week notice period - not because he thinks I'm irreplaceable, but purely because I want to leave!!

If your position Is functus then, you may be technically in breach of contract but if they don't suffer a loss then they would have difficulty suing you.
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