Breach of Contract

[JaredM]

I did sign an opt-out (but after the interview at the client site) don't know if all this talk about an optout not being valid if the introduction has already taken place - but I have sent them a letter now asking how the amount they say I am due has been calculated and how the actions of myself or myco have caused these losses.

can't do the pay big wage/wind up company thing as they are holding me personally liable - just cheked the contract and it is there - stupid me I know but we live and learn.

Not sure what constitutes 'introduction' but I believe an interview may count - best to check that with a specialist too.

As for holding you personally responsible, the agency I was with tried that angle too. As it turned out, I signed the contract on behalf of my company and not also personally - I signed 'on behalf of the Service Provider' and the 'Service Provider' was listed as MyCo in the contract. That meant I didn't personally agree to the contract and they couldn't go after me directly.

[TheFaQQer]

Not sure what constitutes 'introduction' but I believe an interview may count - best to check that with a specialist too.

I think that's part of the problem - agencies will argue that the point of introduction is when you are "introduced to start work", i.e. on day 1 on site. Contractors would generally argue that the introduction is when they discuss the role at interview (either in person or not). Unfortunately, the regulations and the opt-out are not clearly worded to define which is right (or indeed, if one of them is right).

[Old Greg]

I think that's part of the problem - agencies will argue that the point of introduction is when you are "introduced to start work", i.e. on day 1 on site. Contractors would generally argue that the introduction is when they discuss the role at interview (either in person or not). Unfortunately, the regulations and the opt-out are not clearly worded to define which is right (or indeed, if one of them is right).

So presumambly, if (as the agents say) you still haven't been introduced to the agent after the interview (but before the first day), you'd be free to contract independently with the end-client once you've met them at interview?

[malvolio]

I thought I answered that. Must not have saved the reply...

(Edited - yes I did, it's in another thread! http://forums.contractoruk.com/showpost.php?p=272617&postcount=30
It's getting late, or I'm getting old... )


Anyway, the relevant section (Clasue 32(9)) that talks about opting out states that the worker and their company should opt-out before introduction or before starting work. The reason they have those two points defined is that either you turn up for an interview prior to being offered the job, like most of us, or you appear on Monday morning ready to go, like most office temps.

Therefore, it seems clear that they intend the first meeting with the client to be the "introduction" point and in the OP's position, he cannot have opted out.

Happy to dig out the relevant text (again!) if anyone doesn't believe me!

[TheFaQQer]

I thought I answered that. Must not have saved the reply...

(Edited - yes I did, it's in another thread! http://forums.contractoruk.com/showpost.php?p=272617&postcount=30
It's getting late, or I'm getting old... )


Anyway, the relevant section (Clasue 32(9)) that talks about opting out states that the worker and their company should opt-out before introduction or before starting work. The reason they have those two points defined is that either you turn up for an interview prior to being offered the job, like most of us, or you appear on Monday morning ready to go, like most office temps.

Therefore, it seems clear that they intend the first meeting with the client to be the "introduction" point and in the OP's position, he cannot have opted out.

Happy to dig out the relevant text (again!) if anyone doesn't believe me!

I think that agents will "forget" that the wording says "either...or" and only see the word "or" in the text. And then rely on you not challenging them.

I suggested earlier this year that Ajilon needed to send their crack legal department on a grammar course to understand the wording of the Act!

[richy]

Thanks for any advice in advance.

did you formally opt out in writing in advance of being given a contract or sent on site? if either are not true you've not actually opted out.

Write back politely stating you are surprised to receive their letter and do not recognise any claim.

If they actually do anything, beyond their letter, and evena solicitors letter. like arrange a court appearance offer to settle it, offer them £1000 or something.

They are basically chancers, trying it on. I would stop speaking to them on the phone, they will get a feel you are an easy target that way. don't answer any of their questions and just reply in writing with something brief as above.

did their contract mention anything about dealing with the client or any client with a relationship with the end client?

The other thing I do is never sign a contract, reject it and explain how your insurers and legal people cant authories it and they shold take out the restrictions because there are not a parit of terms etc. Also you can say you should not be tied in to go through them when you knew of the company already! Post all copies of the unsigned contract back by recorded delivery and leave it with them. If they are hopeless like many agencies are, they wont chase. The benefit i've got is that i'm already on site so I can also argue that they cant present additional restrictions ( in their contract doc) that i never saw when i accepted the role and turned up on site!

The final thing is to have your company write up your Business Terms, mention it in your letter and then you can argue you are working under those terms.

The big benefit is that you're not working through them any more, they don't have any threats about taking you off site to suggest.

Have you got copies of the *signed* documents they are relying on from them? Best ask them what they've got.. to see what they would produce in court!

I'm not a lawyer tho, so you shouldn't go by my advice! Check with your insurer, they might have a free legal advice line..

[fzbucks]

did you formally opt out in writing in advance of being given a contract or sent on site? if either are not true you've not actually opted out.

Yes I did opt out by signing their opt out form which was part of the contract, their contract is worded fairly clearly, the only reason I resent paying them anything and do not believe I should is because my actions haven't caused them to loose any money - the contract ended naturaly then I subsequently took another contract with the outsource provider at the clients site doing a similar job - they could not make any money off the contract that I am in now - the provider do not use them they have their own agencies, this will pretty much form thebasis of my argument - although the contract states I can't work for the company directly or indirectly - it's not caused them any losses which is what they are pursuing me for now - they say the £3000 is what my breaching of the contract has cost them.

[TheFaQQer]

Talk to someone at the PCG legal helpline, assuming you are a member. You'll get better advice than from a bunch of amateurs here.

[fzbucks]

Talk to someone at the PCG legal helpline, assuming you are a member. You'll get better advice than from a bunch of amateurs here.

I'm not a member - thought about joining but did not think they would assist me with this as it is already an existing issue - or do they not work like that?

[TheFaQQer]

I'm not a member - thought about joining but did not think they would assist me with this as it is already an existing issue - or do they not work like that?

Don't let Mal hear you say that!

I'm sure that they would help with advice, but that's just my feeling.

Regardless of that, you really should join - the benefits far outweigh the costs of joining.