Legal Question

[AnthonyQuinn]

Just wondering if any of you experienced folk have had any situations like this. I am a contractor turned permie. Recently hired a contractor direct who was earlier through an agency. We just had a PO with the agency with no Ts and Cs. I had nothing stopping me from approaching the contractor and he accepted the offer. (Lets not go into why I had to get rid of the agency). The agency sent me an email warning that the contractor had a restrictive covenant preventing his joining us. I am now wondering, if by extension, we are also liable even though we had no terms or constraints agreed. Any experience? Advice?

[ladymuck]

Sounds like the contractor had a clause in his contract with them that prevents him working for you directly.

Surprised that there were no terms of engagement at all between you and the agency. Are you sure?

[Lance]

Legal Question

I agree with ladymuck. It seems highly unlikely an agency would place someone on the basis of just a P.O.

If true though, legally it isn’t your problem.
It could get messy though and you might lose the guy. Why not negotiate a deal with the agency that suits? At the end of the day you’re the client and hold all the cards bar the contractor being their man.

[NotAllThere]

No - if there's no restrictive clause in your contract with the agency, they can't come after you. Whether the restriction can be enforced on the contractor depends on the length of the restriction, and how long it was between the contractor leaving and coming back.

[northernladyuk]

Just wondering if any of you experienced folk have had any situations like this. I am a contractor turned permie. Recently hired a contractor direct who was earlier through an agency. We just had a PO with the agency with no Ts and Cs. I had nothing stopping me from approaching the contractor and he accepted the offer. (Lets not go into why I had to get rid of the agency). The agency sent me an email warning that the contractor had a restrictive covenant preventing his joining us. I am now wondering, if by extension, we are also liable even though we had no terms or constraints agreed. Any experience? Advice?

Have you considered that the agency may have emailed the contractor warning that your company has a restrictive covenant preventing his joining you?

Compare notes with the contractor.

[northernladuk]

Why you ditched the agency is pretty key to all this.

[WordIsBond]

Why you ditched the agency is pretty key to all this.

Nope. If there really are no terms in the client's contract with the agency, then there is no liability no matter what his reason is for ditching the agency.

It might make a difference for the contractor in regard to his situation with the agency. If the client has ditched the agency because they don't want to work with them anymore, and is willing to stipulate that under no terms would they have engaged someone with that agency anymore, then it would be impossible to prove that the direct deal between the client and the contractor has cost the agency anything. The agency has lost the relationship and was going to have no revenue from it anymore, therefore they have not been harmed by the direct deal.

But OP, the comment that you might lose the contractor is a valid concern. If he gets scared off by legal threats, you lose him. So first you talk to him. And if there's a real concern that you are going to lose a guy you wanted to keep, then maybe you pick up the phone and call the agency and tell them they don't have a leg to stand on but you'd agree a token payment to make them go away and save hassles for everyone. Or alternatively, you could offer that money to the contractor, to compensate him for the risk/hassle of dealing with the agent, if he prefers that.

[oilboil]

We just had a PO with the agency with no Ts and Cs.

I think the devil in the detail here is in this statement. Agencies and companies generally work in the PO only model when there is an overarching Master Services Agreement in place between the two (probably held by procurement or HR).

This MSA may well dictate a number of conditions that will not be replicated on each individual PO as your company has agreed to be bound by them in all dealings with said agency.

Rather than sort this yourself I suggest you direct the agency to your procurement/HR function

[northernladyuk]

I think the devil in the detail here is in this statement. Agencies and companies generally work in the PO only model when there is an overarching Master Services Agreement in place between the two (probably held by procurement or HR).

This MSA may well dictate a number of conditions that will not be replicated on each individual PO as your company has agreed to be bound by them in all dealings with said agency.

Rather than sort this yourself I suggest you direct the agency to your procurement/HR function

True enough...

Except if the client company had a restrictive clause with the agency, why is the agency referencing the clause with the contractor. So do due diligence etc. But it looks at first sight as if any restriction sits with the contractor. If of course it exists, is valid and the agency can demonstrate loss.

[oilboil]

True enough...

Except if the client company had a restrictive clause with the agency, why is the agency referencing the clause with the contractor. So do due diligence etc. But it looks at first sight as if any restriction sits with the contractor. If of course it exists, is valid and the agency can demonstrate loss.

I agree but any agency is first going to go back to the company saying "Did you know Mr. Contractor is breaking his T&Cs with us, he really shouldn't be working with you"

If that fails to get the "wind up" then they may well later go back with "Following a review of our contracts it appears you Mr. Permie have allowed your employer to breach our agreement"

But the "attack the company" approach will be after they have exhausted trying to get the Contractor to "fall on their sword" as they will be keen not to annoy the purse-keeper