Dear Contractor Doctor
I’m currently working on a three-month contract. As a result of illness, I’ve been working from home for several weeks. When I was unable to work at all last week, one of my client’s employees was tasked with completing my projects. I thought of leaving, but my contract has no termination clause from my side, although the agency and client can terminate with one day’s notice.
The other problem is that if the client terminates because I can’t work, the project manager will lose headcount and won’t be able to hire later in the year. As a result, my client project manager suggests that I fake sick leave so she won’t lose the role. But I am concerned that the agency might sue me for breach of contract if I leave early.
I have three weeks left of the contract - should I fake sick leave to avoid complications with the agency?
Contractor Doctor says:
Contractors who are genuinely ill and cannot work may not be in breach of their contract. However, a contractor who deliberately colludes with their client to the detriment of the agency, and the agency finds out, may find themselves liable for more than lost agency commission.
In this context, the contractor’s best strategy is to be honest with the agency and explain the situation, because faking sickness and not turning up is definitely a breach of contract.
In practice, the agency is unlikely to take legal action over three week’s worth of commission, and may be able to offer a solution that meets both the client’s and original contractor’s needs.
Why contractors who are too sick to work may not be in breach of contract
There are two legal principles that may be applied to demonstrate that a contractor is not in breach of their contract.
A contract may become ‘frustrated’. This means that there has been a post-contract event preventing the contract from being completed, something changes the situation radically, or something happens that removes the commercial purpose of the contract.
Sickness qualifies in this context as a post-contract event that no-one could have predicted that prevents the contract from being completed.
The second legal principle is that of ‘officious bystander’. This principle imagines that two people are negotiating a contact, and an ‘officious bystander’ says ‘but of course you have considered x, y and z?’. If the negotiating parties turn around and say ‘yes of course’, then the principle may apply.
Under this principle, it may be accepted that ‘yes of course Charlie can’t work if she is ill’, and so the contractor would not be in breach of contract.
Be up-front with the agency – they can often find a solution
However, if a contractor deceives their agency and it comes to light, then they will almost certainly be in breach of contract. There may also be other implications – the contractor may never be sent work by that agency again, and the agency might feel motivated to take legal action as a result of the deceit.
In contrast, if the contractor is up-front with the agency and explains the situation, they may find at the very least that the agency has no interest in pursuing a claim for three week’s worth of agency margin.
At best, the agency may be able to solve the client’s issue by providing an alternative contractor on a short-term basis.
If all three parties simply agree to end the contract early, then it is important to secure confirmation of this arrangement in writing.