Client not paying

[barabis]

It sounds like a nasty situation. The scumbag agency has taken no risk at all and they want you to bear the brunt of this.



Did you sign the opt out BEFORE you were introduced to the client?

If not, I would try it on with the agency by claiming that the opt out wasn't valid and therefore their clause saying they don't have to pay if the client doesn't pay should be struck out.

Hi,

I signed the opt out after a second telephone conversation and several emails/texts with the client.

[malvolio]

Hi,

I signed the opt out after a second telephone conversation and several emails/texts with the client.

Then it may not be valid. You'll have to go to court to prove it though, and you may lose. It all depends on how you define "introduction", which has never been established.

PM Sent...

[eek]

Hi,

I signed the opt out after a second telephone conversation and several emails/texts with the client.

Oh dear (for the agency). You're not actually legally opted out as you need to be opted out prior to being introduced (and from memory even then you can opt back in prior to starting)

[malvolio]

Oh dear (for the agency). You're not actually legally opted out as you need to be opted out prior to being introduced (and from memory even then you can opt back in prior to starting)

Its not that black and white. You can interpret "introduced to the client" various ways, as I keep saying.

[Wanderer]

I signed the opt out after a second telephone conversation and several emails/texts with the client.

As malvolio and others say, the opt out might not be valid. See the Agency Conduct Regulations section 32(9) which says the opt out is only valid provided that such notice is given before the introduction or supply of the work-seeker ... to the hirer.

It's been discussed quite a bit here and the consensus is that it's a grey area because the law is ambiguous.

Our view is this:

Skilled contractors would typically be "introduced" to the client to be interviewed for suitability and the opt out would have to happen before this introduction.

Office temps, cleaners, kitchen porters, security guards etc are different in that they are "supplied" to the client by the agency without being "introduced" or interviewed first and in this case the opt out would have to be done before the supply.

Our argument is that the opt out must happen before the introduction or supply, which ever comes first.

Agencies will argue that the wording is that the opt out can be done any time before the supply of the worker even if they have been introduced. If this was true then the point of introduction would be irrelevant so why would the law even talk about opting out before the introduction?

It would be very interesting to see someone challenge the agency's view on this point. Ask your legal advisers if they are willing to argue the opt out is invalid.

I'd give it a shot - most likely the agency wouldn't let it get to court, there are too many implications for them losing a case, even if it doesn't set a precedent. I reckon they would come up with a settlement at very least but hold out for the full amount because there is an important point of principle at stake here...

[psychocandy]

It sounds like a nasty situation. The scumbag agency has taken no risk at all and they want you to bear the brunt of this.



Did you sign the opt out BEFORE you were introduced to the client?

If not, I would try it on with the agency by claiming that the opt out wasn't valid and therefore their clause saying they don't have to pay if the client doesn't pay should be struck out.

Wanderer has a point here. I'd be checking that.

Looks agency were trying to throw all the risk onto you here. And so far its worked.
You're the one who's going to be out of pocket not them.

Sounds like maybe the client had this planned though and knows the system.

But remember your contract is with agent not the client. If it was me I'd be concentrating on what I could get from the agent and let them worry about the money from the client.

[psychocandy]

Then it may not be valid. You'll have to go to court to prove it though, and you may lose. It all depends on how you define "introduction", which has never been established.

PM Sent...

As malvy says, grey area and no-one knows for sure. Agency will define introduction to suit them.

[Safe Collections]

It sounds like a nasty situation. The scumbag agency has taken no risk at all and they want you to bear the brunt of this.

Agreed, the agent has made an extremely poor credit decision.

Given the status of the opt-out it may well be worth checking with a solicitor that has experience in commercial litigation, preferably one familiar with contracting.

But you will need to credit check the agent, if it is a tin pot start up with no history or assets you will need to think carefully before spending money on legal action. It's entirely possible to run up huge legal bills only for the agency to go under at the last minute.