Restriction on going direct clause - employment?

[Spian]

Hi I know this is a common topic but think I have a slightly different question to that usually asked.

First time contracting via limited co. I was interviewed by end client via a referral, told they were only taking people on via agency x and given agency x details.

Now formed limited co and contracted to client via agency x. Contract contains restriction clause preventing supplying of services direct to client without going through agency for 6 m post agreement.

I did tick the opt in box re employment regs, but told (and still have the email) as I was a limited co I couldn't opt in.

Client is now publicly advertising for the job I perform via the contract, and I'd prefer to do it as an employee rather than contracting.

Does the restriction clause apply to becoming an employee, or is it to prevent direct contracting?

If it does apply should it be reduced in period given my "opt out" was not valid?

Thanks in advance.

[TheCyclingProgrammer]

If the agency really told you you have to opt out then I'm afraid you've been misled.

[Wanderer]

I did tick the opt in box re employment regs, but told (and still have the email) as I was a limited co I couldn't opt in.

Then they told you a bare faced lie.

Does the restriction clause apply to becoming an employee, or is it to prevent direct contracting?

If it does apply should it be reduced in period given my "opt out" was not valid?

Have a talk to the client and if they are willing to offer you the job then mention that you did NOT opt out of the Agency Conduct Regulations.

If the agent didn't actually introduce you to the client then it's unlikely that it will be a big problem, most likely the client will speak to the agency and you will find that the problem will quietly disappear....

[Brian Potter]

I did tick the opt in box re employment regs, but told (and still have the email) as I was a limited co I couldn't opt in.

I'm going slightly off-topic here, so apologies.

I'm not going to be liked for writing what I'm about to write, but my most recent Qdos IR35 review stated that Opt Out was a 'positive' from an IR35 perspective. Below is exactly what they wrote on my contract review from earlier this month:

19 Agency Regulations

It is recommended that you do opt out of the conduct regulations as these can be seen as a form of control over independent contractors

So who is right and who is wrong?

[Old Greg]

Then they told you a bare faced lie.



Have a talk to the client and if they are willing to offer you the job then mention that you did NOT opt out of the Agency Conduct Regulations.

If the agent didn't actually introduce you to the client then it's unlikely that it will be a big problem, most likely the client will speak to the agency and you will find that the problem will quietly disappear....

Does the contract he signed apply to himself as an individual, or is it a contract between two companies? If you see what I mean.

[arrumac]

how big is the client?, most of the larger firms will tell the agency how it is. I have made contractors permanent before typically agencies working for larger clients don't even get a finders fee any more so there is no axe to grind on their part. Assuming the contract was not going to be renewed.

[Wanderer]

Does the contract he signed apply to himself as an individual, or is it a contract between two companies? If you see what I mean.

It's most likely between the contractor LTD company and the agency so in theory the contractor could close the company and there is no further restriction on the contractor. The agency normally enforce the restriction via their contract with the client though.

However, in this case, it appears that the contractor was already known to the client and it was the client who asked the agency to take the contractor on (rather than the usual scenario where the agency introduces the worker) so the client will most likely have an agreement with the agency that there are no temp to perm fees or restrictions on the contractor changing agencies. The agency just put this tulip in their contractors as a bit of a bluff. I've been in this situation before and ordered them to remove the restriction and they have agreed.

[SueEllen]

So who is right and who is wrong?

The only reason to opt-out is if you tend to use employees or subbies. If you are doing the work yourself there is no reason to opt-out.

It isn't an IR35 indicator which is what QDOS looks for.