Conflict of Interest clause in (expired?) contract....

[DirtyDog]

I thought the whole purpose of suing someone was to recover losses

EDIT: i.e. no loss = no case

Punitive damages for deliberately breaching the contract?

You have a contract which stipulates that you must use that agency for a given period of time. You choose to break that contract, which you freely entered into. Therefore, you deserve to pay some financial penalty for breaching the contract.

[DirtyDog]

I have now been approached by the company who wishes to engage my services again, but through a different agency (their new 'nominated' supplier now).

The correct way to do it is to get the agency that you are contractually bound to to engage in a business relationship with the new agency. New agency then contracts with the client.

Someone has to pay for this additional link in the chain.

[SueEllen]

The correct way to do it is to get the agency that you are contractually bound to to engage in a business relationship with the new agency. New agency then contracts with the client.

Someone has to pay for this additional link in the chain.

The correct way is for the client to work with the agency to make them cheaper, or find a clause in their contract to enable them to stop working with them.

To be honest if I had a client in administration I would not be eager to work for them particularly if you are opted-out properly.

[DirtyDog]

The correct way is for the client to work with the agency to make them cheaper, or find a clause in their contract to enable them to stop working with them.

OK, you could do it that way as well

To be honest if I had a client in administration I would not be eager to work for them particularly if you are opted-out properly.

I can't imagine an agency wanting too much of their business if you were opted in, though.

[craig1]

It would be interesting to know if this has been tried and how many times it has worked without issue or has not achieved the desired outcome. This in theory shouldn't work...



Piercing the corporate veil - Wikipedia, the free encyclopedia

There's a difference in that scenario though. That's a person making a covenant then still breaking it by doing the work through a separate company. If your company makes a contract with another company, even if you're the sole director, then that's a separate situation altogether. Your company can sub it out, again if your contracts are sorted, making you, as a person, not the complete core of the contract. In the scenario you quote, you're the entire subject of the contract, in a well-written contractor contract then it's a company to company contract with you as a person a step away. (you - your company - agency)

[SueEllen]

There's a difference in that scenario though. That's a person making a covenant then still breaking it by doing the work through a separate company. If your company makes a contract with another company, even if you're the sole director, then that's a separate situation altogether. Your company can sub it out, again if your contracts are sorted, making you, as a person, not the complete core of the contract. In the scenario you quote, you're the entire subject of the contract, in a well-written contractor contract then it's a company to company contract with you as a person a step away. (you - your company - agency)

Agencies aren't born yesterday - they try and ensure that both the company, the company's officers and any of it's staff who have been involved in the contract can't work for the client through another company. Likewise employers do this with their employees.

Unfortunately some of their anti-competition clauses are so badly worded that the clause won't stick if contested - so your first job is checking that the clause is likely to stick.

[Wanderer]

The contract was not "extended" formally, i.e. a new contract was not issued, however, I continued to work there for an additional 6 months until the end of September 2013.

By working and getting paid, there is an implied extension of the original contract on the same terms. It's not a great way to do business but it does have some basis in law.

I have now been approached by the company who wishes to engage my services again, but through a different agency (their new 'nominated' supplier now).

There is a chance that the agency could come after you but they would have to sue your company which will be a limited liability company and probably has no assets so it could just cease trading.

There is a lot of theory about this but in my opinion, the most likely outcome is that there would be a lot of bluff and bluster from the agency but they probably couldn't actually enforce this contract term for a number of reasons. Really, it's the client who has caused the agency a loss rather than you as the contractor and you could argue that the 6 month no compete clause is an unfair restraint of trade against a small business.

If the client is willing to take you on then go for it but for goodness sake don't breathe a word of it to the old agency or put your updated CV on the job boards or linked-in etc.

And next time, don't sign the opt out and you won't find yourself in this situation...

[IT Gnu]

And next time, don't sign the opt out and you won't find yourself in this situation...

Actually...the 'old' agency never approached me about opting in or out of anything. In fact, until I started reading replies to this thread, I wasn't even aware of such a thing. I've been with the old agency for many years.....let them get on with the paperwork stuff...all I was doing was doing the work then getting paid by them!

A bit naive by me I suspect for not keeping up with stuff, but does this change anything?

G

[kal]

Actually...the 'old' agency never approached me about opting in or out of anything. In fact, until I started reading replies to this thread, I wasn't even aware of such a thing. I've been with the old agency for many years.....let them get on with the paperwork stuff...all I was doing was doing the work then getting paid by them!

A bit naive by me I suspect for not keeping up with stuff, but does this change anything?

G

Well if you didn't sign the opt out then you are in a better position IMO.

[DirtyDog]

Actually...the 'old' agency never approached me about opting in or out of anything. In fact, until I started reading replies to this thread, I wasn't even aware of such a thing. I've been with the old agency for many years.....let them get on with the paperwork stuff...all I was doing was doing the work then getting paid by them!

A bit naive by me I suspect for not keeping up with stuff, but does this change anything?

G

If you aren't opted out, then you can change agencies / go direct 8 weeks after the end of the last contract or 14 weeks after the start of the previous contract (which ever is later).

If they say anything, explain that you were opted into the agency regulations and to go away.