Going direct and cutting the agency out of the loop, I think I found a loop hole?

[Under Worked and Overpaid]

Hi Guys

This is my first post so thought I would start with a quickie. I have got myself into an interesting situation.

I took a 6 week contract via an agency at a rate well below what I normally go for, I did this because the job was very interesting and for 6 weeks I could live with the difference. Anyway 6 weeks turned into 6 months and I finally lost interest when I looked at my bank balance and realised that I best sort myself out with the impending financial doom of the UK economy.
As my contract was coming to an end I decide to apply for a few roles and was quickly offered a 2 month contract on the nice rate I used to remember. I accepted this role and left the other contract without renewing.

I have been approached by the client to work for them but explained that they were lucky to get me for the previous rate and told them what my new rate was. They are happy to match the rate if the agency is cut out of the loop. I explained that there might be a clause in my contract with the agency and I would check I also suggested that they check their agreement with the agency.

When I was initially sent a contract it contained a confirmation letter and a list of terms and conditions. The letter contained the following key bit of information.
Job title – 3 rd line support technician
Description -Network/server support engineer.
“Please read our enclosed T &C of engagement. By commencing the assignment you accept the terms of this letter and our enclosed standard terms.”

I never signed and returned the contract because I disputed the description and explained for the rate you have offered I am not doing any network support. I told them to send another contract which they did not. All my renewals we handled by word of mouth between me and the client and I never had any communication with agency.

I had a read through the T&C and noticed the below statement.
“The supplier and the representative shall not, so far as is applicable at law, either during the assignment or thereafter for a period equivalent to the period of supply under the assignment (but not less than 3 months or more than 12) either directly or indirectly (whether under a contract of services or a contract for services or through any third party or ltd co) provide the services supplied (or services substantially the same as those supplied) under the agreement to client or end user except if I pay the agency 25% plus vat of the total remuneration received)”

Normally I would not bother with the hassle but the following line gives me hope “or services substantially the same as those supplied)”. I was originally hired as 3rd line server guy but I am now required as a security consultant. I believe that the services I provided before are completely different than the services I intend to provide. I am not sure where I stand with the unsigned contract.

Where do I stand legally and what would you guys do?

What do you guys think and sorry for the long post?

Regards

[ASB]

Where do you stand legally?

Same as anybody else. Somewhere between a rock and a hard place.

Of course the way restraints work is that the restrainer (agency) has to sue, so will they ever find out and/or do that. Personally I would think the restraint in there is entirely valid and legal. So that only leaves your get out of "substantially the same".

So, if by "security consultant" you mean you get a nice peaked cap I think you would be OK. Otherwise the conversation with m'lud is likely to go something like:-

-> So what does a security consultant do"
-> Security type things with the computers on the network
-> And what does a network support do
-> Support type things with the computers on the network

Sure, it's very different in the detail, but do you really think it is substantially different?

Also of course the restraint in your clients contract is likely to be more far reaching - and much easier to enforce.

[TheBigYinJames]

Where do I stand legally and what would you guys do?

There are several ways this could go:

1. Legally if you did the work in response to the contract, you implicitly accepted the terms of the contract whether you signed it or not. That is normally the way the courts look at it, and unless you can point to something illegal in the terms, they will assume you were bound by its terms if you did the work in response to it. So you can't work for clientco, look elsewhere or wait the statutory 12 months.

2. Alternatively, you could go directly with the client and hope the agency don't find out, but it is a risk, they could pursue you in court over breach of contract. It's probably unlikely, but you never know in these austere times with less dosh coming in, agencies may wish to pursue damages.

3. Come clean to the agency and offer them a negotiated percentage, or a lump sum compensation, something like 5% would seem acceptable, especially if the rate is so good now. They are not obligated to negotiate with you, but agencies tend to take 'freebies' quite well in my experience, and they won't want their rep damaged with the client co in case of future work. The downside of alerting them is you can't then do 2.

HTH

[DonkeyRhubarb]

I have been in this situation before, and all I did was give the agency the option of:

a) reducing their commission to 5%
OR
b) not getting the business at all

Given the choice, they were pragmatic and took the 5%.

I felt it was worth 5% to have the agency between myself and the client, particularly as the agency paid me straight away before receiving payment from the client.