• Visitors can check out the Forum FAQ by clicking this link. You have to register before you can post: click the REGISTER link above to proceed. To start viewing messages, select the forum that you want to visit from the selection below. View our Forum Privacy Policy.

Client will ditch the agency but want to keep me - handcuff clause

Collapse
X
Collapse
  •  
  • Filter
  • Time
  • Show
Clear All
new posts

    #11
    Originally posted by billybiro View Post
    So then you're effectively a disguised employee, or at least that's a huge pointer to being inside IR35 as, for one thing, there'd be no RoS with that.
    Bull crap. The contract was deemed outside by QDOS and I have also received an outside determination result done by the client with HMRC's CEST tool. It just stops the company and me as the representative to engage the client directly. So I can't use another LTD to provide services to the client and at the same time I can't provide a substitute through my own company DIRECT with the client.
    Last edited by zonkkk; 20 February 2021, 13:27.

    Comment


      #12
      Originally posted by zonkkk View Post
      Is it even enforceable if the agency won't get any more work from the client anyway?
      Those clauses are designed to prevent you from bypassing the agent in its work with the client. If the agent is sacked by the client, depends on wording but they would find it hard to show you are bypassing them.

      A lot of handcuff clauses are puffery anyway. Enacting them is risky in terms of reputation. Personally I'd tell them at termination time that it's my intent to continue working.

      Originally posted by zonkkk View Post
      Bull crap
      LOL. Good luck. The assessment is not a 'get out of jail free card'.


      This contact that been assessed, this would be the same contract you're going to need to provide is void in order to get out of the handcuff clause? How's that going to work?


      At the least I would be looking at re-doing a CEST.




      Comment


        #13
        Originally posted by CalmEddie View Post

        Those clauses are designed to prevent you from bypassing the agent in its work with the client. If the agent is sacked by the client, depends on wording but they would find it hard to show you are bypassing them.
        If you're the only person on site through that agency and the client have decided to never use that agency again, terminating their relationship with them, then the agency cannot demonstrate loss of earnings because of your actions. The agency can no longer provide a service that they are claiming they are able to provide and attempting to seek recompense for. Make sure that you have been cc'd in on the termination from the client to the agency so that it is clearly set out.
        The greatest trick the devil ever pulled was convincing the world that he didn't exist

        Comment


          #14
          Originally posted by CalmEddie View Post
          LOL. Good luck. The assessment is not a 'get out of jail free card'.
          Off course it's not. It just shows that the client did their due diligence, and found the working relationship to be outside IR35. This is in addition to me sending the contract to QDOS for assessment which came back outside, coupled with the fact that I have IR35 insurance as well, puts me in a very strong position in case of an HMRC investigation.

          Originally posted by CalmEddie View Post
          This contact that been assessed, this would be the same contract you're going to need to provide is void in order to get out of the handcuff clause? How's that going to work?
          I don't have to prove that the whole contract is void, but merely that the hand-cuff clause is not enforceable, or come to an agreement between the client, the agency and my LTD co.

          Originally posted by CalmEddie View Post
          At the least I would be looking at re-doing a CEST.
          The CEST for the new contract has already been done by the client (outside IR35). I have not seen the contract yet, but once it comes out I will of course send it to QDOS for assessment.





          Comment


            #15
            Originally posted by LondonManc View Post
            If you're the only person on site through that agency and the client have decided to never use that agency again, terminating their relationship with them, then the agency cannot demonstrate loss of earnings because of your actions. The agency can no longer provide a service that they are claiming they are able to provide and attempting to seek recompense for. Make sure that you have been cc'd in on the termination from the client to the agency so that it is clearly set out.
            While I wholeheartedly agree with this, however I am not sure that the fact that the agency won't get any work from the client has anything to do with my contractual responsibility towards the agency not to engage the client directly (or if I do, pay the fee stated in the contract).

            I see them as two unrelated things, but maybe just because I am risk averse.


            Comment


              #16
              Originally posted by zonkkk View Post

              While I wholeheartedly agree with this, however I am not sure that the fact that the agency won't get any work from the client has anything to do with my contractual responsibility towards the agency not to engage the client directly (or if I do, pay the fee stated in the contract).

              I see them as two unrelated things, but maybe just because I am risk averse.

              It doesn't....
              However it helps if the agency decide to go all legal on you and they have to prove that by your actions (by breach of contract) you have reduced their income. Which is exactly what they have to do.
              If they have been fired by the client it makes it harder for them to demonstrate a loss.

              But that matters not. Your contract doesn't stop you from going direct. It simply commits you to paying the agency off. This is not a usual case so this may well be enforceable.
              But as I said earlier, nothing is enforceable without evidence that you have breached. If the agent are gone from site there is no way they can get that evidence short of paying a PI to follow you.
              See You Next Tuesday

              Comment


                #17
                Originally posted by Lance View Post

                It doesn't....
                However it helps if the agency decide to go all legal on you and they have to prove that by your actions (by breach of contract) you have reduced their income. Which is exactly what they have to do.
                If they have been fired by the client it makes it harder for them to demonstrate a loss.

                But that matters not. Your contract doesn't stop you from going direct. It simply commits you to paying the agency off. This is not a usual case so this may well be enforceable.
                But as I said earlier, nothing is enforceable without evidence that you have breached. If the agent are gone from site there is no way they can get that evidence short of paying a PI to follow you.
                Without seeing the exact wording of the contract, I can't add more than this and what I already have.

                The key phrase used in court and by solicitors is "demonstrable loss".

                Above all else, zonkkk - what's in it for you? Are you getting any extra out of the arrangement? Are payment terms changing or is this simply a favour to the client?
                The greatest trick the devil ever pulled was convincing the world that he didn't exist

                Comment


                  #18
                  Originally posted by LondonManc View Post

                  Without seeing the exact wording of the contract, I can't add more than this and what I already have.

                  The key phrase used in court and by solicitors is "demonstrable loss".

                  Above all else, zonkkk - what's in it for you? Are you getting any extra out of the arrangement? Are payment terms changing or is this simply a favour to the client?
                  Indeed.

                  The difference here is the OP has agreed to pay the agency a sum if he goes direct. So it's not a traditional handcuff. The agency do have to demonstrate a loss if it goes to court, but as the money they have 'lost' is from the OP's LTD not the client it does, in my mind, change the circumstances.
                  See You Next Tuesday

                  Comment


                    #19
                    Originally posted by billybiro View Post

                    So then you're effectively a disguised employee, or at least that's a huge pointer to being inside IR35 as, for one thing, there'd be no RoS with that.
                    Lots of contracts between agency and the contractor LtdCo name the worker being assigned. It's usually in a schedule to the main agreement, rather than in the main contract itself. It doesn't automatically mean you're a disguised employee. How it's worded is the key factor.

                    Comment


                      #20
                      Originally posted by LondonManc View Post
                      Above all else, zonkkk - what's in it for you? Are you getting any extra out of the arrangement? Are payment terms changing or is this simply a favour to the client?
                      Yes, I get to keep my outside IR35 status.

                      They are so risk averse that they are reluctant to engage me outside IR35 through the agency. They want to have access to the whole contract chain to make sure it's watertight.

                      Comment

                      Working...
                      X