Enforcing Terms & Conditions

[cookiemonster99]

Hi,

We are a Roofing Contractor operating nationwide.

We utilise two sets of 'Terms & Conditions'. One for clients/customers who ask us to undertake works... And the other for Sub-Contract Labour/Agency Labour.

We have never really had any issues that would require us to enforce any of these conditions however recently we used sub-contract labour to provide us with suitable qualified labour.

Before we undertook their services - We specifically requested copies of all operatives qualifications for our record. We were only provided with one set - for one operative out of the four that were sent to our site.

The Director of the company providing the labour sent an email (Still got it) listing the qualifications of each operative (Claiming they had the right quals for this project).

The project is now drawing to a close - and I have requested in writing that the director needs to provide us with the copies of qualifications as originally requested before any outstanding monies will be paid.

Our client has stated they might wish to see them before we get paid.

One of the terms in our T&C for labour specifcally states that provided that if at the time of an offer of sub-contract employment you cannot provide a copy of your qualifications specific to the project - a written declaration by you of yours or your operatives qualifications will be sufficient in the interim. A copy of your qualifications must be presented before any outstanding monies can be paid... and so on...

They seem to be refusing to send through the qualifications as requested. If my client asks to see them and I cannot provide them we face some financial penalties.

Dont get me wrong - we have been paying the labour invoices on time and in full but have been prompting them over the last few weeks we need their qualifications sending through.

As my terms were in place before they undertook working for us - can I legally enforce the witholding of payment until they comply?

Am I right in saying that they should have requested a copy of our T&C's before working for us?

Many thanks

 

[Steve Sellers]

Did you actually provide your T+C's to the subcontractors and did they agree to them?

 

[cookiemonster99]

They were and are available... They were not actively 'Given' to them before they commenced works.

We are not trying to get out of payment. With the potential threat of financial penalty from our client - whilst we owe the Sub-Contractor money it would be easier to withhold it rather than pay it, get a penalty and then try to re-coup it from the contractor.

I was under the impression that it is the responsibility of the other party to request or ask for your T's & Cs?

Thanks

 

[Steve Sellers]

Hmmm. How exactly were they made available?

How exactly did they agree to those terms?

 

[cookiemonster99]

Sorry - If he sends copies of the qualifications which they said they have over I will pay the outstanding... Not a problem. By them sending them over the relevant information - this removes the threat of penalty from our client so everyone is happy.

I believe they are being reluctant in their sending over the qualifications - because I dont believe they have the right ones...

 

[cookiemonster99]

If we were asked about terms, conditions and alike - they would have been given a copy of the T&C's...

Working rates and such were negotiated by email - operatives were sent to site and worked - workmanship faultless. They submitted invoices at the end of the week - we paid them the end of the following week.

 

[ITsoldUK]

Hi,

We are a Roofing Contractor operating nationwide.

We utilise two sets of 'Terms & Conditions'. One for clients/customers who ask us to undertake works... And the other for Sub-Contract Labour/Agency Labour.

We have never really had any issues that would require us to enforce any of these conditions however recently we used sub-contract labour to provide us with suitable qualified labour.

Before we undertook their services - We specifically requested copies of all operatives qualifications for our record. We were only provided with one set - for one operative out of the four that were sent to our site.

The Director of the company providing the labour sent an email (Still got it) listing the qualifications of each operative (Claiming they had the right quals for this project).

The project is now drawing to a close - and I have requested in writing that the director needs to provide us with the copies of qualifications as originally requested before any outstanding monies will be paid.

Our client has stated they might wish to see them before we get paid.

One of the terms in our T&C for labour specifcally states that provided that if at the time of an offer of sub-contract employment you cannot provide a copy of your qualifications specific to the project - a written declaration by you of yours or your operatives qualifications will be sufficient in the interim. A copy of your qualifications must be presented before any outstanding monies can be paid... and so on...

They seem to be refusing to send through the qualifications as requested. If my client asks to see them and I cannot provide them we face some financial penalties.

Dont get me wrong - we have been paying the labour invoices on time and in full but have been prompting them over the last few weeks we need their qualifications sending through.

As my terms were in place before they undertook working for us - can I legally enforce the witholding of payment until they comply?

Am I right in saying that they should have requested a copy of our T&C's before working for us?

Many thanks

In my opinion I would say NO.

As you, yourself may well be deemed in breach as you have not confirmed they are in possession of the required quals.

You are opening up a can of worms here that could well bite you too IMHO.

Pay them and move on making sure that next time YOU CONFIRM the qualifications first and this ensures you comply with your own terms.

JMTC

 

[cookiemonster99]

Even though before they set foot on site I have an email declaration outlining from them detailing all of the qualifications they apparently hold?

They sent through upon our original request - a list of everyones qualifications. Now if it transpires that following this they actually dont have the qualifications which they declared they do have where does this leave us?

 

[ITsoldUK]

Even though before they set foot on site I have an email declaration outlining from them detailing all of the qualifications they apparently hold?

They sent through upon our original request - a list of everyones qualifications. Now if it transpires that following this they actually dont have the qualifications which they declared they do have where does this leave us?

And did you check these out?

...just playing devils advocate btw but you see my point?

 

[Tej]

If we were asked about terms, conditions and alike - they would have been given a copy of the T&C's...

Working rates and such were negotiated by email - operatives were sent to site and worked - workmanship faultless. They submitted invoices at the end of the week - we paid them the end of the following week.

Well.. they could not have been a bunch of unqualified, inexperienced muppets...

Roofers are in a league of their own

 

[cookiemonster99]

with the operatives that came to site and the system in use - they demonstrated their ability perfectly. There was no reason to doubt their ability or them having the qualification. If they didnt have a clue it would have be very apparent in the first 20 minutes of working.

I see your point - No physical check was carried out with their actual qualification no...

 

[Steve Sellers]

How can they be bound by terms they never saw, and were never put to them. How can you prove that they intended to create legal relations on the basis of the terms you seek to enforce?

 

[cookiemonster99]

is it not a fair assumption that for example... if you were going to send an operative to site to work for another company as a sub-contractor that you would seek some information before doing so?

For example - rates of pay, payment terms, working hours, how to bill for your works? My employee - should they have been asked at the time would have almost certainly sent accross a set of our terms...

I accept that we could have been a lot more dilligent in this matter, for sure.

They have sent operatives to site - making various assumptions... For example our payment terms could have been 30/60 days not the end of the following week... They actually never cleared any of this up.

The person in my office who dealt with this accepted their written statement of qualifications, we let them go to site, their workmanship was great but now they dont want to show the qualifications they said they had?

 

[Steve Sellers]

Well in that case you would be seeking to rely on implied terms. EG if that is the norm in the industry then you could establish that those are implied terms. However, the onus would be on you. As far as they are concerned, I am sure, there will be basic correspondence that establishes that they are to be paid and how much etc....

Payment terms - in the absence of a provision, the courts would deem a "reasonable" time frame for payment. This could be based on past history with them and other contractors, for example.