Moving Agencies??

[Tester]

Hi guys,

been reading this forum for a while but finally I have an issue that needs some help!!

Ive been working for the same client for just short of a year via an agency. Recently there has been some communication from the client as a whole about only using preferred suppliers which basically lead to me being asked if i minded changing agencies and from there I found my current agency charges 25% on top of my hourly rate to the client.

I'm awaiting to hear what the preffered supplier agency charges on top but i'm pretty sure it will be less than 25% however I have today been told by the clients HR department that if i move its at my risk in terms of the legaility side of things.

Now he's my question, can my current agency stop me moving to a new agency but continuing in my current role (at the end of the contract obviously) and also is 25% excessive?. I've asked for more money on a previous occasion only to be told by the agent that he's "at his limit"!!?

any help greatly appreciated.

[mark271]

I think the questions people are going to ask is did you opt out before meeting the client. Also why go with another agency cant you just go direct to the client or would you not be a prefered supplier?

I think if you did not opt out then the agency has no hold on you and you can work direct with the client or through another agency.

Hope this is the correct information I have not been doing this that long but have been reading a lot.

Mark.

[TheFaQQer]

I think if you did not opt out then the agency has no hold on you and you can work direct with the client or through another agency.

Not quite - you cannot go direct within 8 weeks of the contract ending, IIRC.

To the OP - if the client is happy with the agency you are through, and would extend you through them, then the agency could prove a financial loss if you went with someone else and they decided to sue you. Whether they would sue, and whether they would win is an argument that has been done here a lot before - I think that they would be unlikely to sue, but would probably win if they did.

They aren't getting a 25% slice - you are getting a percentage of what they agree with the client. Is it unreasonable? Possibly - but that's really for the client and the agency to negotiate rather than you. The agent may well be at his limit - if he can't cut his margin then there's nothing that he can or will do about it. I don't really care what the agency take, to be honest - I agree a good rate with them, and leave it to them to sort it out with the client (but again, this has been argued here a number of times).

[Ardesco]

I think it is more likely the agency will go after the end client rather than you. If it went to court you can say that the end client cut off their relationship with the agency so the agency was not going to earn any money from you whether you stayed with them or not. As the agency would not be able to prove that your actions caused them a loss (because your actions haven't, it is the end clients actions that have caused a loss) it would probably be thrown out of court.

Of course IANAL so get the legal side checked with a professional first (PCG legal helpline if you are a member?)

If you are opted in you can go direct once your current contract has finished, or you have lawfully terminated the contract (i.e. worked out the notice period in the contract).

In your case this shouldn't be an issue, if the contract has run its course and the end client is then going to switch to a new agency there is no notice period to work out. If the end client wants to switch before your contract has run its course just sit tight and wait, the agency will terminate your contract if the end client terminates their contract with the agency, you then just switch over.

Details below:

Regulation 6: – Restriction on detrimental action relating to workseekers
working elsewhere
Regulation 6(1) prevents employment agencies and employment
businesses from taking any detrimental action or including restrictive
terms in work-seekers’ contracts, which prevent them from either:
(a) i) terminating their contract with the employment agency or
business;
5
ii) working for others such as the client directly or through a
competing employment business; or
(b) which require the work-seeker to notify them, or any person
connected with them, of the identity of any future employer.
It is important to remember, when applying regulation 6(1)(a)(ii), that the
term “work-seeker” includes limited company contractors and persons
supplied through limited company contractors that have not given notice
to opt out of the Regulations. This is as a result of the provisions of
regulation 32(3), which specifically extends the definition of work-seeker
to limited company contractors (which have not opted out of the
Regulations) in these circumstances. Therefore the agency or
employment business may not restrict either the person supplied by a
limited company, or the limited company itself from terminating the
contract with it and taking up work with a person other than it or the
limited company itself.
Neither can an agency or employment business, under regulation 6(1),
subject, or threaten to subject, a work-seeker that has lawfully terminated
any contract with it, or given notice to do so to a detriment. An example
of a detriment would be withholding payment or deducting a proportion of
the hourly rate for any period already worked.

[TheFaQQer]

I think it is more likely the agency will go after the end client rather than you. If it went to court you can say that the end client cut off their relationship with the agency so the agency was not going to earn any money from you whether you stayed with them or not. As the agency would not be able to prove that your actions caused them a loss (because your actions haven't, it is the end clients actions that have caused a loss) it would probably be thrown out of court.

I agree that going after the client is a better bet, but whether they will risk the chance to ever become the preferred supplier by suing the client is unlikely.

The OP says

I have today been told by the clients HR department that if i move its at my risk in terms of the legaility side of things.

which implies to me that the client would like to use a preferred supplier, but would be OK with still using the current ones for existing contracts - so it's not the client action that is causing a loss, it's the contractor.

A project I worked on last year has just changed preferred supplier, and the client compensated the old agency and moved everyone over to the new one (if they agreed) - maybe the client needs to consider something like this.

[Ardesco]

I agree that going after the client is a better bet, but whether they will risk the chance to ever become the preferred supplier by suing the client is unlikely.

The OP says

which implies to me that the client would like to use a preferred supplier, but would be OK with still using the current ones for existing contracts - so it's not the client action that is causing a loss, it's the contractor.

A project I worked on last year has just changed preferred supplier, and the client compensated the old agency and moved everyone over to the new one (if they agreed) - maybe the client needs to consider something like this.

To be honest I think the HR department is just trying to shift the blame early so that if any issues come up they can try and wash their hands of them.

I wouldn't trust a word HR say, they usually don't have the first clue about the legal side of things despite all the bluff and bluster.

The client probably doesn't want to compensate the agency hence why they are trying to get the contractors to switch by themselves and place the onus for responsibility on the contractor.

Get everything the client has said in writing (e-mail will do) and save it and then get some legal advice. I suspect you will have enough evidence to prove that it is the client causing a loss and not you.