Agency worker- who's liable for non-payment?

[FatherToddUnctious]

Hi everyone, 1st time here. Hope you can provide me with some advice.

 

Last September, I registered with a recruitment agency, who provide temporary staff to the hospitality industry. I'm a chef by profession. Soon afterwards, they contacted me and asked me if I would go and work as a Sous Chef at an Italian restaurant (their client). I was offered a rate of £11 an hour, plus travel expenses and accomodation. Payment was received by submitting an invoice to the client every Monday, they then paid me by bacs a week the following Wednesday.

 

I commenced the contract on Wednesday 19th September on a full time basis. It was a challenging environment, with the kitchen experiencing many problems, but the client and the agency both seemed happy with the job I was doing. I continued until Saturday 15th December, when I decided that the relationship with the client was deteriorating such that it wouldn't be wise to continue. I left the following morning. It was my understanding that as a relief chef no notice was required to be given by any party in order to terminate the agreement. I informed the agency that I had left, and they seemed to understand my reasons, as they had placed several other chefs with this client and they had experienced similar problems.

I submited my final invoice to the client on Monday 17th December, this was due for payment on 26th December. This payment was not made. I contacted the agency in the new year, and they assured me that they would pursue this payment on my behalf. They stated that the client was aggrieved, and that he was claiming that he had had to close his restaurant because I decided to leave. I contacted the agency again last week, and they stated that they were still trying to contact the client. I contacted the agency again today, and they replied that I should contact the client, not them, as he is responsible for paying my wages.

 

I'm of the opinion that as I was engaged by the agency to go and work at their client, then they are responsible ultimately for my being paid. Whilst I was paid by the client, that was an agreement between the agency and the client. Surely I was essentially employed by the agency to do work on their behalf.

 

I'd welcome any advice as to how I should now proceed, and to who exactly is liable for the non payment.

 

A small second point, a friend informs me that as an agency worker I am now, due to EU legislation, entitled to accrued holiday pay for the period I worked. Is this the case? How would I go about calculating that entitlement.

 

Many thanks in advance. Todd.

[scoobied]

Can't answer the question regarding who was your employer - the agency or the resturant - however yes you are entitled to holiday pay. Contact your agency for ther claim for and its roughly 10% of your salary (ROUGHLY!). However HMRC website has a tool to calculate it - just google agency holiday pay and you'll find it

[assisted blonde]

I think you will find it is up to the agency to pay you and for them to chase the employer for the money. one thing I would say though is that for a chef to walk out with no notice it is very unfair on the employer especially just before Christmas and he probably did loose money so i can se why he dosnt want to pay.

[Surfer01]

Then agency was your employer as it was probably them that paid your wages after you had submitted your form showing hours worked. Check and confirm who paid your wages. Doubt if it would be the client although client woudl have paid agency, who would have paid you.

[FatherToddUnctious]

I think you will find it is up to the agency to pay you and for them to chase the employer for the money. one thing I would say though is that for a chef to walk out with no notice it is very unfair on the employer especially just before Christmas and he probably did loose money so i can se why he dosnt want to pay.

They weren't an employer, they were a client of the agency that engaged me. As such, I was there as a contractor and under no obligation to give notice. Given how the client ultimately behaved towards me, being openly threatening and abusive, really put me in a position where I had no other option than to leave. If the operation of his business is entirely reliant on the presence of a single contractor, then he should have been mindful of that and conducted himself accordingly. I've no sympathy for him.

[FatherToddUnctious]

Then agency was your employer as it was probably them that paid your wages after you had submitted your form showing hours worked. Check and confirm who paid your wages. Doubt if it would be the client although client woudl have paid agency, who would have paid you.

I sent my invoice to the accounts manager at the client's restaurant, and they then transferred the money directly to me. The agency just charge a flat fee to the client and don't handle the wages. Nonetheless, surely I'm technically employed by the agency, and the client agreeing to pay me is just a contractual matter between them and the agency?

[assisted blonde]

Sorry I missread your post, if the client paid you and not the agency then he was your employer

[Surfer01]

Sorry I missread your post, if the client paid you and not the agency then he was your employer

I am assuming that the contract was between the OP and the agency and the employer never provided a contract. Therefore agency employed OP even though client paid OP directly.

[assisted blonde]

the OP appears to have been introduced by the agency and the OP was working for the employer directly? I may be wrong, was there a contract of any sort between the OP and the agency or employer? which would clarify the situation, still think it was morally wrong not to give notice though (having employed people in the hospitaluty industry I know what its like when you are let down)

[bedlington83]

one thing I would say though is that for a chef to walk out with no notice it is very unfair on the employer

The employer (whether its the agency or the restaurant) can dismiss without notice so what's unfair about the OP leaving without notice? If the employer wants security then they should offer security of tenure in return.

[assisted blonde]

just think in sonme jobs leaving the employer in the lurch just before an exceptionally busy time is a bit unfair, but thats just my opinion.

[FatherToddUnctious]

just think in sonme jobs leaving the employer in the lurch just before an exceptionally busy time is a bit unfair, but thats just my opinion.

It wasn't a decision I took lightly, but the level of threatening, abusive language I suffered from the business owner on the final day was so severe that I felt there was no alternative.

It simply wouldn't be tolerated in any other industry, and despite having been a Head Chef at a high level myself for several years I'd never dream of conducting myself towards someone working for me in that way. If you were to shout and swear at someone in the street in such a way and a police officer witnessed it, they would arrest you. The fact that this business owner is so reliant on agency staff I think goes a long way to display that there is something seriously wrong with how he runs his business. Apparently 2 other people who were working in the kitchen on the Saturday night also didn't come back on the Sunday, so the fact he had to (apparently) close is not my fault.

[san_d]

If I understand correctly, the OP has invoiced the restaurant. Therefore the OP has acted as self-employed contractor. In which case neither the agency nor the the restaurant are his employers. The restaurant is the OP's client and the agency is just a middleman. In my opinion it is not relevant whether the money is paid by the restaurant or the agency. He has to deal with the restaurant, not the agency.

[FatherToddUnctious]

If I understand correctly, the OP has invoiced the restaurant. Therefore the OP has acted as self-employed contractor. In which case neither the agency nor the the restaurant are his employers. The restaurant is the OP's client and the agency is just a middleman. In my opinion it is not relevant whether the money is paid by the restaurant or the agency. He has to deal with the restaurant, not the agency.

I'm not self-employed, I never stated to the agency that I was, nor am I registered with HMRC. I submitted an invoice for the hours I worked because that's what the agency instructed me to do. I only ever had any form of contractual agreement with the agency, not the agency's client.

On the agency's website there is a code of etiquette for relief chefs- it states that if there is any disagreement or grievance with the client to refer the matter to the agency, not to approach the client. Yet, when the client fails to pay, now the agency is taking the attitude of, "Well that's nothing to do with us, chase the client!" I just can't see that the agency isn't liable- they engaged me, they should take responsibility if a client fails to pay.

[Surfer01]

Who was paying the NI & PAYE?

[FatherToddUnctious]

Who was paying the NI & PAYE?

The Client

[assisted blonde]

Then that would make the client the employer i should think

[Emmzzi]

I agree with assisted.

[SNALF]

Difficult one this, as the employment status shouts 'self-employed' yet the client should not have made NI and PAYE deductions. There are other indicators of employment status however. Father, can you tell me whether you were effectively treated as an employee? Were you expected to take the work offered on a regular shift basis or did you have the right to turn it down? I understand that you had no employment contract but were you given any terms or conditions by the agency or the client in the form of a business agreement? Did you enjoy any benefits offered to the clients employees? Holiday pay is not entitled to self-employed but did you ever take any holiday which you were paid for? Were you ever disciplined or had a grievance handled by the client? When you submitted invoices, were they under a trading name or as an individual? If they treated you as an employee in addition to making pay deductions, you can claim employed status. The client would be the employer.

[FatherToddUnctious]

Well, I specifically said to both the agency and the client that I wasn't self-employed, and didn't want to be.

I was sent to the client to fullfil the role of sous chef, on a temporary basis. As I understand it, I can turn work down (though obviously, if one routinely says 'no thanks' the agency would stop bothering to ask). The only T&C's were an email from the agency confirming that it was a sous role at £11 an hour, plus accomodation and travel. Only benefits I can think of was occasional staff food, but that's standard for a chef! I took no holidays, nor was holiday pay mentioned- I've only just found out that I'm actually entitled to it as a temp. No D&G matters. Invoice was as an individual.

 

I have to say, and I know I'm answering my own question, but I just can't see how I have any contractual relationship whatsoever with the client.

The agency made a contract with the client- to provide them with a relief chef on the condition that the client would pay a weekly fee to the agency and pay me an hourly rate (+ accomodation, etc). The agency then approached me, and a contract was made between us that I would go and do work at the client's business. I was working for the agency, doing work at the client. Although the client was paying me directly, that was due to an agreement between the client and the agency. The contractual obligation to pay me lies with the agency, if the client fails to pay the agency is liable. They must pay me, then pursue the client in turn. No?

[assisted blonde]

If the client wasnt your employer he wouldnt be paying the tax and insurance, the way I see it is that the agency was really just a facilitator or middle man who put you in touch with the employer and took a fee for doing so.

[Emmzzi]

Is there any chance at all you are mistaking "Invoice" for "timesheet"?

 

The person who pays you is generally the employer. You do not appear to have an actual contract with either. I'd say on balance you have an employer/ employee relationship with the restaurant owner, not the agency. I know you don't *want* it to be that way.

 

ET1 or small claims, with person who paid you as the respondent.

[FatherToddUnctious]

Is there any chance at all you are mistaking "Invoice" for "timesheet"?

 

The person who pays you is generally the employer. You do not appear to have an actual contract with either. I'd say on balance you have an employer/ employee relationship with the restaurant owner, not the agency. I know you don't *want* it to be that way.

 

ET1 or small claims, with person who paid you as the respondent.

What I did was email a word document setting out the hours I'd worked the previous week, along with my bank details.

[Emmzzi]

That's not really an invoice. It's a time sheet.

[FatherToddUnctious]

That's not really an invoice. It's a time sheet.

OK. Does that have any bearing?