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Insight · Getting paid

Getting paid for variations
you were told to get on with.

The entitlement is rarely the problem. The evidence is. What stands up when the instruction was verbal, and the one email that changes the argument.

Published ·5 min read·Written by Unibuild

A verbal instruction is still an instruction, and a construction contract does not have to be in writing for its payment rights to apply. What decides whether you get paid is whether you can prove, months later, that the instruction was given, what it required, and what it was worth. That is an evidence problem, and it is solved at the time rather than at the end.

Why this goes wrong so reliably

Nobody sets out to work for nothing. The sequence is almost always the same, and it is nobody being dishonest.

Somebody senior asks on site for something that is not on the drawing. It is small, the gang is there, and stopping to raise paperwork would cost more than doing it. So it gets done. Then it happens again. By the time the final account is being agreed, the person who asked has moved to another job, the quantity surveyor has never heard of it, and the only record is your foreman's memory of a conversation in February.

The entitlement was fine throughout. It is the proof that decayed.

The variation was worth £8,000 in March and nothing in November, and the work did not change in between.

What actually stands up

In rough order of how much weight each carries.

  1. A written instruction. An architect's instruction, a client variation order, an email saying please do it. Nothing beats this and it costs nothing to ask for.
  2. Your written confirmation of a verbal instruction. The single most valuable habit in this article, and it is covered on its own below.
  3. Signed dayworks sheets. Signed on site, at the time, by somebody with authority, recording labour, plant and materials. A dayworks sheet signed the same week is worth far more than a perfect one signed at the end.
  4. The site diary. A contemporaneous daily record of what was done, by whom, in what weather, with which trades present. Contemporaneous is the operative word: a diary written up on Friday for the whole week is worth much less than one written each day.
  5. Photographs with dates. Before and after, and photographs of the condition that caused the change. A dated photograph of what was behind the wall settles most arguments about whether the work was necessary.
  6. Delivery notes and plant records. Corroboration that the materials and plant the claim depends on were actually on site when you say.

The email that changes the argument

Most standard forms have a mechanism for confirming a verbal instruction in writing, and even where yours does not, the habit works.

Send it the same day. Three sentences: what you were asked to do, who asked and when, and that you are proceeding on the basis it is a variation to be valued under the contract unless you hear otherwise by a stated date.

Two things then happen and both are good. Either nobody replies, and you have a contemporaneous unchallenged record that the instruction was given, which is close to as good as an instruction. Or somebody replies to say it is not a variation, and you find that out on day one rather than at the final account, while you can still decline to proceed or price it differently.

The reason firms do not send it is that it feels confrontational. It is worth being clear that it is the opposite: it is the thing that stops a disagreement in November about a conversation in March. Sites where this is routine have fewer arguments, not more.

Valuing it when there is no rate

Where the work resembles something in the contract, it is normally valued at those rates, or at rates adjusted where the character or conditions have changed. Where nothing in the contract fits, a star rate is built up from first principles: labour, plant, materials, overhead and profit. Where the work could not sensibly be measured at all, dayworks.

Two things worth claiming that firms routinely leave out. Where a variation disrupts the sequence of unchanged work, the effect on that work is part of the claim rather than something you absorb. And where it extends the programme, the time is a separate entitlement from the money, and both are lost by not asking.

Where this does not get you paid

Stated plainly, because an article that implies every claim succeeds is not useful.

Work you chose to do because it seemed sensible is not a variation. Correcting your own defective work is not a variation. An instruction from somebody with no authority to give one is a genuine problem, and knowing who on the other side can actually instruct a change is worth establishing at the start of a job rather than after. And where the contract has a condition precedent requiring notice within a stated period, missing that window can bar an otherwise good claim, which is one of the few places where the paperwork really is the whole thing.

Where this touches the platform

Every item in the evidence list above is a record with a date on it, and the reason those records go missing is that they live in six places: a diary in the cabin, photographs on a phone, dayworks in a van, an email in one person's inbox. Unibuild hangs site diaries, progress photographs, drawings and permits off one job record, with the weather captured and the trades on site logged daily, so the contemporaneous evidence exists as a by-product of running the job rather than as a task somebody has to remember. Variations sit against the order with the instruction attached, and the subcontract order itself is issued as a proper deed with its terms on it. What no system can do is send the confirming email for you: that is a habit, and it is the highest-return one in this article.

Project and site Comms and reporting Documents and certificates Rate valuations

Where to start, on Monday

Pick the job with the most disputed extras and list every variation you believe you are owed for. Against each, write down what you actually hold: an instruction, a signed sheet, a diary entry, a photograph, or nothing. The ones with nothing are your loss rate, and the number is usually larger than expected.

Then introduce one habit for the next job: the same-day confirming email, sent by whoever takes the instruction on site. It takes two minutes and it is the difference between the two columns on that list.

Asked most often

The follow-up questions.

Once valued, it goes into an application that does not come back rejected.

Can I get paid for a variation that was not in writing?+
Often yes. A verbal instruction is still an instruction, and since section 107 of the Construction Act was repealed with effect from 1 October 2011 a contract does not have to be in writing for the statutory payment rights to apply. What decides it is evidence: whether you can show months later that the instruction was given, what it required and what it was worth.
How do I confirm a verbal instruction on site?+
Email the same day, in three sentences: what you were asked to do, who asked and when, and that you are proceeding on the basis it is a variation to be valued under the contract unless you hear otherwise by a stated date. If nobody replies you hold an unchallenged contemporaneous record. If somebody disputes it, you find out on day one rather than at the final account.
What evidence supports a variation claim?+
In order of weight: a written instruction, your written confirmation of a verbal one, dayworks sheets signed on site at the time by somebody with authority, a contemporaneous site diary written daily rather than at week's end, dated photographs of the condition that caused the change, and delivery and plant records corroborating what was on site.
How is a variation valued when there is no contract rate?+
Where the work resembles measured work it is normally valued at contract rates, adjusted where the character or conditions have changed. Where nothing fits, a star rate is built from first principles covering labour, plant, materials, overhead and profit. Where the work cannot sensibly be measured, dayworks. Disruption to unchanged work and any extension of time are separate entitlements worth claiming.
When is extra work not a variation?+
Work you chose to do because it seemed sensible, and correcting your own defective work. An instruction from somebody without authority to give one is also a real problem, so establish at the start of a job who on the other side can instruct a change. And where the contract makes notice within a stated period a condition precedent, missing that window can bar an otherwise good claim.
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