Same client new agency

[ee00ffk]

Last year back in April '15 through to Nov'15 I was working at Client site through Agency A, I then left the contract and started at a new Client with Agency B and wrapping up in 4 weeks.

I got a call today from Agency C (found my cv online) looking to recruit in a different area of the business and completely unrelated role for my previous Client. Would there be any issues in me getting the role?

I have the following restriction clause (I don't recall signing any opt out agreement):

11 Restriction

11.1 Sub Clause 11.2 and 11.3 shall only apply to an agreement with a Service Provider and Consultant(s) who have opted out

of the Regulations.

11.2 The Service Provider and its Directors undertake that they shall not and that they shall procure that the Consultant(s) shall

not enter into any agreement, whether directly or indirectly, to supply services of a similar nature to the Client or a

subsidiary or associated company of the Client or to the Client’s clients, other than through the Company for a period of 12

months following the termination of the Agreement.

11.3 The Service Provider and its Directors hereby acknowledges that the Company expends significant resources in sourcing

and maintaining its clients and is entitled to protect its commercial interests.

11.4 The Service Provider acknowledges that should the Client or a third party to whom it has introduced the Service Provider

wish to utilise the Service Provider’s services other than through the Company, then the Company may be able to charge

the Client a fee or agree an extension of the Supply with the Client.

[northernladuk]

I am confused as to why you mentioned the first client and Agent A? Are the relevant to this at all? I'm assuming you have contracted with Client 2 with Agency B and now want to contract with Client 2 via Agency C? That contract extract is the one you are just finishing? Or are you wanting to go back to Client 1??

Either way.... I think there is a bit of risk here as it's a bit close for comfort.

12 months handcuffs are generally unenforceable as they are too long. If you are talking going back to client 1 you are talking less than 6 months which is easily enforceable. So... The timescales are enforceable. The only get out you have here is if the previous agent has no chance of placing you in the position advertised. If they are not contending for the business then there can be no proven loss by you starting so they cannot invoke the handcuff. They could just be complete arses and block your application but it wouldn't stand up. They have to prove tangible loss for it to stand up.

Problem is you do not know if they have a shot at this. They could say they have it on their books but haven't advertised it as they are resourcing internally. If that is the case they the handcuff would stand and things could get very ugly for you.

Is it not possible to go back to previous agent and say you hear on the grapevine there are some gigs at the client in <general terms> area. Try not to give too much details. If they say yes and put you forward then happy days. Problem solved. If they say no, nothing on their books and no visibility of anything coming then get that in writing and go with Agency C. The previous agent just admitted they are not contending for the role so cannot prove loss if you start.

It's not a situation I'd be comfortable in messing about with handcuffs though. Although they may not stand up it will very rarely go legal. It's most likely the agents will kick up a fuss and argue at which point the client won't want to know and drop you to get rid of the issue.

HTH

[SueEllen]

As the 12 month clause is written into the contract and unenforceable you can ignore it. You, the agency and even a judge are now not allowed to replace 12 months with 6 months. It would be up to the agency to show why the 12 month clause was reasonable in the first place and if they can't come up with a good explanation the handcuff clause would be void.

To be safe you should get a solicitor to give an opinion first, and then you need to be able to contact that solicitor if the first agency threatens you.

[northernladuk]

As the 12 month clause is written into the contract and unenforceable you can ignore it. You, the agency and even a judge are now not allowed to replace 12 months with 6 months. It would be up to the agency to show why the 12 month clause was reasonable in the first place and if they can't come up with a good explanation the handcuff clause would be void.

To be safe you should get a solicitor to give an opinion first, and then you need to be able to contact that solicitor if the first agency threatens you.

Hmmm, but if it's within 4 months of that 12 months it is still a reasonable time so should be considered. Saying your 4 month claim is invalid just because the paperwork says 12 is skating on thin ice surely? If they tried pulling you up about it at anything 6 months plus yes, its too long but not just because the paperwork has a 12 on it... If that makes sense?

[SlipTheJab]

Unless they have a crystal ball or are stalking you they'll never find out, fill yer boots HTH.

[SueEllen]

Hmmm, but if it's within 4 months of that 12 months it is still a reasonable time so should be considered. Saying your 4 month claim is invalid just because the paperwork says 12 is skating on thin ice surely? If they tried pulling you up about it at anything 6 months plus yes, its too long but not just because the paperwork has a 12 on it... If that makes sense?

The law doesn't work like that.

It was explained to me by a barrister than a solicitor a few years ago.

If the agency decided to challenge it and it went to court for a variety of reasons, the judge isn't allowed to insert an alternative clause. S/he is only allowed to interpret the clause's meaning if it's not clear and then say whether it's enforceable.

In this case unless the OP is a specialist so there is only 5 people in the country who can do their job or they are revenue earning like a salesman, then then the clause is very likely enforceable due to the time period. As the clause makes no sense if the time period is crossed out then the entire clause can be ignored.

It's up to the OP to get a solicitor to give their opinion on the contract then if the agency finds out and threatens them to , get that solicitor to send a letter pointing out if their client faces any detriment they will be take action against them.

Obviously if the OP was sensible in the first place they would have got the contract looked at and the agency would have been told to alter the handcuff clause. If the agency had then decided not to alter the handcuff clause again the OP could have ignored it unless of cause they only one of the 5 people in the country or revenue earning etc etc.

[NigelJK]

12 months handcuffs are generally unenforceable as they are too long. If you are talking going back to client 1 you are talking less than 6 months which is easily enforceable. So... The timescales are enforceable.

For contracts where you have a water tight 'opt out' agreement in place. I can't remember this ever being tested for real as usually the Agency get very heavy handed with the client and the contractor and one usually backs down.

By watertight I mean that the Agency did EVERYTHING they were supposed to regarding the initial contract to make it watertight. Did they inform you about the opt out BEFORE introducing you to the client? Did you specifically state that you wanted to opt out (usually enforce by making sign a specific term in the contract, or there being a contract where it is stated that your ltd co opts out)?

Read the thread on opting out for more detail.

[LondonManc]

I am confused as to why you mentioned the first client and Agent A? Are the relevant to this at all? I'm assuming you have contracted with Client 2 with Agency B and now want to contract with Client 2 via Agency C? That contract extract is the one you are just finishing? Or are you wanting to go back to Client 1??

Either way.... I think there is a bit of risk here as it's a bit close for comfort.

12 months handcuffs are generally unenforceable as they are too long. If you are talking going back to client 1 you are talking less than 6 months which is easily enforceable. So... The timescales are enforceable. The only get out you have here is if the previous agent has no chance of placing you in the position advertised. If they are not contending for the business then there can be no proven loss by you starting so they cannot invoke the handcuff. They could just be complete arses and block your application but it wouldn't stand up. They have to prove tangible loss for it to stand up.

Problem is you do not know if they have a shot at this. They could say they have it on their books but haven't advertised it as they are resourcing internally. If that is the case they the handcuff would stand and things could get very ugly for you.

Is it not possible to go back to previous agent and say you hear on the grapevine there are some gigs at the client in <general terms> area. Try not to give too much details. If they say yes and put you forward then happy days. Problem solved. If they say no, nothing on their books and no visibility of anything coming then get that in writing and go with Agency C. The previous agent just admitted they are not contending for the role so cannot prove loss if you start.

It's not a situation I'd be comfortable in messing about with handcuffs though. Although they may not stand up it will very rarely go legal. It's most likely the agents will kick up a fuss and argue at which point the client won't want to know and drop you to get rid of the issue.

HTH

This is the case in some organisations, who have three agencies on a business PSL and three different ones on an IT PSL. If you sometimes are based in the business, sometimes in IT, and this is a crossover, then you're right, it could get OP out of any trouble that they land in. Maybe asking the client if Agency 1 were ever in the running for the current role would be a good idea as a starter for ten in the backside-covering exercise.

[Boo]

As the 12 month clause is written into the contract and unenforceable you can ignore it. You, the agency and even a judge are now not allowed to replace 12 months with 6 months.

Hi SE,

Not contradicting you but can you (or anyone) provide an authoratitive link sunstantiating that statement ?

Thanks,

Boo

[NigelJK]

If you 'opt out' that's exactly what they will do (it's one of the reasons the legislation was drafted in the first place), it would probably fail the 'reasonable clause' test in court, but as stated I don't know of anyone that's had it go that far (in 30 years of contracting). In practice you would get the left hook of the Agency 'legal dept' ringing you and giving you 'both barrels'. The 'legal dept' would also ring the client with the subtle right hook of 'we'll drag you through the courts' if you do this. (p.s. this is from experience, and there are ways around it if needs be and depending on the client).

Why do you want to go back through another agency, surely you'd be better off direct?