Old Agency Stopping me From Work - Post Termination Clause

[bathingape]

Hi,

I've got a bit of a dilemma here which I'm hoping you guys can help with. I won't mention company names but i'll try my best to explain my situation.

My first contracting role started at the beginning of May this year. I went through Employment Agency A and was working for Client A.

The contract was for an initial 3 mths but I got a renewal until the end of December. During this time, Client A had decided finally, that they will be outsourcing ALL their I.T. to Outsourcer . Outsourcer already had some staff on site at Client A for the whole time I was there and after a discussion with their team leader and an pplication through Employment Agency B, i handed in my notice and started work Outsourcer working for Client A, but on a different site altogether, 8 miles away from the office I was initially based in.

My umbrella company received the new contract from Employment Agency B and noticed that it had the same end client address on the contract as my first contract, so they decided to contact Employment Agency A.

Employment Agency A has now said that I cannot work on any Client A site unless placed there by them - even though i'm employed by the Outsourcer.

I have now been placed with a different end client altogether - gutted as I was enjoying the job.

The post termination clause on the umbrella company website is as follows:

13. POST TERMINATION RESTRICTIONS
13.1 You hereby agree that you shall not (without the prior consent in writing of the Company) for a period of 6 months immediately following the termination of your employment with the Company, indirectly or directly or through an agency or otherwise and whether on your own behalf or in conjunction with or on behalf of any other person, firm, company or other organisation, (and whether as an employee, director, principal, agent, consultant or in any other capacity whatsoever), (a) be employed or engaged in, or (b) perform services in respect of, or (c) be otherwise concerned with the Customer for whom you were carrying out an Assignment, provided always that the provisions of this clause 13.1 shall apply only in respect of Services with which you were either personally concerned or for which you were responsible whilst employed by the Company during the 12 months immediately preceding the termination of your employment.
13.2 You hereby agree that you will not for a period of 12 months immediately following the termination of your employment, whether on your own behalf or in conjunction with or on behalf of any other person, company, business entity or other organisation whatsoever, directly or indirectly:-
(a) (i) induce, or (ii) solicit, or (iii) entice or (iv) procure, any person who is or was a Client or Customer Employee to leave their employment; or
(b) be personally involved to a material extent in (i) accepting into employment or (ii) otherwise engaging or using the services of any person who is or was a Client or Customer Employee;
and in this Clause 13.2 "Client or Customer Employee" means any person who was employed by a Client or Customer for at least 3 months prior to the termination of your employment and with whom you had material contact or dealings in performing the Services.
13.3 The provisions of clauses 13.1 and 13.2 above shall only apply if you have opted out of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 in respect of that Assignment.
13.4 The provisions of clauses 13.1 and 13.2 above shall remain in force, even if your employment terminates (for any reason), for the restricted period envisaged by those clauses.

My EAA Status is Opt Out.

Do I have any rights here? Again - I am not employed directly by Client A. I'm a field engineer for Outsourcer and i'm required to visit multiple sites.

[NervousRexx]

Hi,

I've got a bit of a dilemma here which I'm hoping you guys can help with. I won't mention company names but i'll try my best to explain my situation.

My first contracting role started at the beginning of May this year. I went through Employment Agency A and was working for Client A.

The contract was for an initial 3 mths but I got a renewal until the end of December. During this time, Client A had decided finally, that they will be outsourcing ALL their I.T. to Outsourcer . Outsourcer already had some staff on site at Client A for the whole time I was there and after a discussion with their team leader and an pplication through Employment Agency B, i handed in my notice and started work Outsourcer working for Client A, but on a different site altogether, 8 miles away from the office I was initially based in.

My umbrella company received the new contract from Employment Agency B and noticed that it had the same end client address on the contract as my first contract, so they decided to contact Employment Agency A.

Employment Agency A has now said that I cannot work on any Client A site unless placed there by them - even though i'm employed by the Outsourcer.

I have now been placed with a different end client altogether - gutted as I was enjoying the job.

The post termination clause on the umbrella company website is as follows:

13. POST TERMINATION RESTRICTIONS
13.1 You hereby agree that you shall not (without the prior consent in writing of the Company) for a period of 6 months immediately following the termination of your employment with the Company, indirectly or directly or through an agency or otherwise and whether on your own behalf or in conjunction with or on behalf of any other person, firm, company or other organisation, (and whether as an employee, director, principal, agent, consultant or in any other capacity whatsoever), (a) be employed or engaged in, or (b) perform services in respect of, or (c) be otherwise concerned with the Customer for whom you were carrying out an Assignment, provided always that the provisions of this clause 13.1 shall apply only in respect of Services with which you were either personally concerned or for which you were responsible whilst employed by the Company during the 12 months immediately preceding the termination of your employment.
13.2 You hereby agree that you will not for a period of 12 months immediately following the termination of your employment, whether on your own behalf or in conjunction with or on behalf of any other person, company, business entity or other organisation whatsoever, directly or indirectly:-
(a) (i) induce, or (ii) solicit, or (iii) entice or (iv) procure, any person who is or was a Client or Customer Employee to leave their employment; or
(b) be personally involved to a material extent in (i) accepting into employment or (ii) otherwise engaging or using the services of any person who is or was a Client or Customer Employee;
and in this Clause 13.2 "Client or Customer Employee" means any person who was employed by a Client or Customer for at least 3 months prior to the termination of your employment and with whom you had material contact or dealings in performing the Services.
13.3 The provisions of clauses 13.1 and 13.2 above shall only apply if you have opted out of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 in respect of that Assignment.
13.4 The provisions of clauses 13.1 and 13.2 above shall remain in force, even if your employment terminates (for any reason), for the restricted period envisaged by those clauses.

My EAA Status is Opt Out.

Do I have any rights here? Again - I am not employed directly by Client A. I'm a field engineer for Outsourcer and i'm required to visit multiple sites.

Please leave this with me for a few days whilst I try and get to grips with the issue and I'll get back to you early next week.

[bathingape]

Please leave this with me for a few days whilst I try and get to grips with the issue and I'll get back to you early next week.

excellent - your help would be much appreciated.

[malvolio]

Which bit of 13.1 don't you understand?

Anyway, I don't actually understand the problem. You still have a job, so apart form being sited elsewhere - which goes with the territory in this game - what exactly are you complaining about?

[northernladuk]

Firstly, what have you lost in all this? You are still with Outsourcer via Agent B just not doing visits to Client A which you enjoyed. You have lost the enjoyment of going to Client A?? Am I right?

If so what are you expecting when you say what are my rights. Rights to do what? Complain, seek compensation, be put back at Client A?

I would say that looks like you have been caught squarely with the Handcuff clause and to get around it they have pulled you off Client A. No other issue here except you feeling a bit agrieved. To that I would point out you are a contractor, you cannot sit happy at a client. It isn't what we do. It's nice but not to be expected.

I would also raise a question about contracts and direction here as well. Are you being directed which named clients your are responsible for without a change in contract? I would just check you are covered properly from an IR35 perspective here.

You could ask the client what agreements were made with Employment Agent A here. Surely this would affect every contractor with Agent A so something that should have been dealt with. If not Agent A can throw his teddy out of the cot like he has.

In summary I would say you don't really have any rights as nothing particularly has gone wrong cept your cushy number has gone. If you decided to fight this what outcome would you want? To be moved back to your other Client?

[bathingape]

sorry for not making myself clear as to what I wanted.

The job I was going into was for me, a step forward career wise and it opened a lot more doors for me in the future. Learning new technologies, working on vessels offshore etc. The end result is that I would like to be back at Client A.

[Spacecadet]

First things first, change your umbrella company immediately and without haste.

[bathingape]

First things first, change your umbrella company immediately and without haste.

thanks - but what's the reasoning for this mate?

[NervousRexx]

I've a problem reading things with poor grammar and all the unnecessary bolding, colouring, capitalisation, etc.

[CheeseSlice]

First things first, change your umbrella company immediately and without haste.

WHS, or go LTD Co next time.

Whilst I agree there is a handcuff clause here, it is clearly being used out of spite.
Your old agent would appear to have lost all business with the client, presumably from losing a bid or falling out with the client, and is just being a sore loser.
They have lost nothing from your actions alone, so don't really have a case for enforcing this.