Agency has unfair contract with 'employer'?

[Chris2048]

Hi, I'm new here.

I'm a student that signed up with an IT-Contracting agency, on the following contract:
Sign up for 2 years, and the agency will have me placed with large IT employers.
The pay is significantly lower than if I was employed by these companies myself; but after 2 years,
I may can either renegotiate for higher pay, or be employed by the company I am placed with if they are willing.

Now nearing the end of my contract, I find I would have to work longer with the agency for this to happen; While the employer of my current placement would be willing to employ me after my contract is over, *they* have a contract with the agency stating that to do this, they must have employed me for over a year (I changed to this placement after over a year of being placed elsewhere).

I feel it unfair that this kind of contract, which obviously affects me, and would require that I work for the agency longer isn't mentioned when I signed my own contract. Is there anything I can do about this, considering that employment after my own contract was not guaranteed?

Thanks.

[Paddy]

It seems that you are not a contractor but a "temp" employed by the agency. Is that correct?

[GB9]

It isn't directly your problem from what you write. You appear to be nearing the end of your 2 year period so you become a free agent. Unfortunately the current end client has a contract that says they can't employ you until they have given the agent a year's commission (or so it sounds).

The reality is, if this is the case and the employer wants you, they could easily come to an arrangement with the agency to pay them the commission they would have had over the course of the year. As it is, the agency is getting the best of both world's, longer from you and money from the client.

You need to press the client to do something. Explain the situation and see what they say. Ultimately, its up to them to do something. If they won't, then start looking elsewhere now. My guess would be that if the client won't do something now, then they won't do anything when the year is up. Until then, you get stuck on a lower salary.

[DirtyDog]

This is where you need to know your opt-out status from the agency regulations - these are designed to protect temps in situations like this.

If you did not opt out, in writing, before being introduced to the client, then they cannot be paid if you leave it eight weeks from the end of your contract with them. The client does not have to pay them anything, either, if you remained inside the agency regulations.

[Wanderer]

It seems that you are not a contractor but a "temp" employed by the agency. Is that correct?

The agency are acting as an Employment Business as defined by the Employment Agencies Act 1973. I'm not sure how your attempt to draw a distinction between a "contractor" and a "temp" is relevant here.

As GB9 says, press the client to sort this out. Also tell us what your "opt out" status is because this is very important to the client....

[Chris2048]

This is where you need to know your opt-out status from the agency regulations - these are designed to protect temps in situations like this.

If you did not opt out, in writing, before being introduced to the client, then they cannot be paid if you leave it eight weeks from the end of your contract with them. The client does not have to pay them anything, either, if you remained inside the agency regulations.

opt-out? I've not heard of any options to do so. The agency gives "training" at the beginning of the contract, for which you are liable large sums of money if you break the contract. Working as a temp is percieved as commpensation for this training.

[Wanderer]

opt-out? I've not heard of any options to do so. The agency gives "training" at the beginning of the contract, for which you are liable large sums of money if you break the contract. Working as a temp is percieved as commpensation for this training.

Read your contract carefully because these questions are important:

• Does it mention anything about them acting as an "Employment Business"?
• Does it mention an opt out of The Conduct of Employment Agencies and Employment Businesses Regulations 2003 (aka the Agency Conduct Regulations).

If not then you may simply be an employee of the agency. It could be worth getting professional advice on this. The client probably has a lot to gain and the agency a lot to lose so try and conspire with the client's legal team to see what can be done.

[Chris2048]

Thanks for your help, it is appreciated.

I had a friend send me this link: https://www.gov.uk/employment-agenci...-transfer-fees

Now I'm a little unsure about what this says:
"
If you run an employment business you can charge transfer fees to hirers:
when they’re supplied a temporary worker who is then taken on permanently by the hirer (temp-to-perm fees)
"
and

"
For example, you can’t use transfer fees unreasonably to discourage hirers from:
offering permanent work to temporary workers
"

Is this why it's important if the agency is an "Employment Business"? I'm currently trying to dig out my contract to check, I'll post back here any detail I find and think might be relevant.

Another detail:
with respect to "the Agency Conduct Regulations", I got this email a while back:
"
salary variation:

New legislation entitled 'Agency Workers Regulations 2010' is effective from 1st Oct 2011. While this is not applicable to your employment, to the extent that it is deemed applicable, by entering into this contract variation you will have no entitlement to rights conferred under Regulation 5 of the AWR insofar as they relate to pay.
"

The message urged signing it and sending it back, which I didn't since the 'variation' was a 1-year pay increase already promised by my current contract. I found it suspicious that I needed to sign something else, while also signing away some right that didn't apply to me - but might apply to me?!

FYI, regulation 5 is "Regulation 5 provides a right for the agency worker to the same basic working and employment conditions as the agency worker would have been entitled to if they had been recruited directly by the hirer.
" -- http://legislation.data.gov.uk/nisr/.../made/data.htm

As an totally out-there idea: my friend also suggested it might be possible to set up as a company in my own name, and contract out myself on behalf of that company? I wonder if that's covered by the second bullet-point on the first link I provided? Just a thought.

Also, I've been informed that the company has extended the contract with the agency - 3 months beyond my contract end!

[jmo21]

If not then you may simply be an employee of the agency. It could be worth getting professional advice on this. The client probably has a lot to gain and the agency a lot to lose so try and conspire with the client's legal team to see what can be done.

This seems the most likely scenario.

[cojak]

Look to Lawspeed if you want professional help.

I've used them in the past and they were very good.