Martin Brewer recommends finding work elsewhere, in answer to this tricky question about freelance pay.
The question: A female friend of mine works as a daily freelance contractor for a consultancy. She supplies her services to an end client who the consultancy have found, on a daily basis.
The process that the consultancy has in place is that she supplies her daily timesheets at the end of the week to the end client, they then pay the consultancy and she gets paid. The problem is the end client has a habit of losing timesheets, my friend has no ability to put pressure on the end client, and the consultancy certainly don't want to 'rock the boat' by chasing the end client or asking them to 'tighten up'. Neither does my friend want to check every time to ensure the end client has received things - it's not her place to address an unreliable process/end client. Needless to say my friend doesn't receive payment if the end client messes up.
1. The consultancy has effectively outsourced the processing, my friend argues that she has obtained a signature on the timesheet, the fact that the administration is unreliable should not disadvantage her being paid. Is this contractually correct? She has a contractual relationship with the consultancy not the timesheet processor.
2. The fact that she doesn't get paid shouldn't be dependent on the end client paying the consultancy. Is this contractually correct?
3. If there is one lost timesheet, the consultancy withhold a week's worth of pay. Is this correct given 1 and 2 and the fact she is daily paid.
4. No one at the consultancy wants to address this for fear of upsetting the end client.
Martin Brewer replies:
It's practically impossible to answer this without seeing the wording of any contract but there are some practical things to consider.
If your friend has indeed 'obtained a signature on a timesheet', why not simply take two photocopies, keep one for her records and submit one to the consultancy leaving the original with the client to either send off to the consultancy or even lose. Your friend will have proof of the work done.
Whether it's right that your friend's pay is dependent on the client paying the consultancy depends entirely on what she has agreed with the consultancy.
Your third point is curious. There are daily timesheets but these are submitted on a weekly basis. You say your friend is 'daily paid' but actually she isn't. She is no doubt paid by reference to a daily rate but from what you say her intervals of payment are weekly, not daily.
Your last point is perhaps most telling and leads one to this question: is this really a consultancy with whom you would want to do business. By not addressing this they are effectively giving away, for free, your friends valuable working time. Personally I would ditch them and find work elsewhere.
Martin Brewer is an employment specialist and a partner for Birmingham-based Mills & Reeve LLP. He has extensive experience acting for large employers on all areas of contentious and non-contentious employment law. His recent work includes advising on the status of agency workers; defending large employers in employment tribunals in cases involving complex race and religious discrimination claims and advising on joint working between NHS Trusts and local authorities. For more information go to http://www.mills-reeve.com