Exclusion Clause - How tight are they?

[Mailman]

Oh come on at least the clause is actually typed in ink!

Depends on what kind of ink though, could be that secret stuff that only shows up under those black lights!

Mailman

[ellisj01]

Thanks for the advice

I'm not trying to stuff the agency but I have an opportunity to work with another company offering services to the same end client. This is causing me issues as I don't want to leave the agency on bad terms as I used them for nearly 4 years but at the same time I need to progress my own career.

My exclusion clause appears to be a restriction of trade "you, undertake not during this assignment nor for a period of 6 months thereafter to seek or accept, from the Client, directly or indirectly through a third party, any work of a kind similar or related to that performed by you the consultant hereunder without first obtaining written permission from us (the agency)."

Any further advice / ideas on how to overcome the clause would be greatly appreciated.

[IT contract agent]

could you not take up the new position but through the agency you've been with for 4 years?

[DodgyAgent]

I'm not trying to stuff the agency but I have an opportunity to work with another company offering services to the same end client. This is causing me issues as I don't want to leave the agency on bad terms as I used them for nearly 4 years but at the same time I need to progress my own career.

My exclusion clause appears to be a restriction of trade "you, undertake not during this assignment nor for a period of 6 months thereafter to seek or accept, from the Client, directly or indirectly through a third party, any work of a kind similar or related to that performed by you the consultant hereunder without first obtaining written permission from us (the agency)."

Any further advice / ideas on how to overcome the clause would be greatly appreciated.

So what is their remedy should you go direct? I believe they need to state that they will seek compensation for loss of margin rather than just say you cannot work directly. it looks leaky to me

[Mailman]

Are you opted in or out?

If you are opted in and there is no clause that allows for the management of the agents out of the business relationship then you can go direct at the end of your contract.

If you are opted out then you are a fool as far as Im concerned (of course I do accept as valid the arguement that you were forced to opt out by the agent...thanks to the morons at the PCG for that lovely little exemption!).

Mailman

[Denny]

Opting In is best

The case for opting in as opposed to opting out is as plain as daylight, as far as I'm concerned.

I run my own business therefore I want to minimise risk to my business and opting in achieves that more than opting out does. It ensure that recruiters have to ensure my suitability before forwarding me onto clients and that makes it much less likely they will believe clients if they try and shaft us for false claims of underperformance based on 'unsuitability.'

I've heard it said time and again that opting in makes absolutely no difference to your tax position. IR35 compliance relies almost exclusively on actual working conditions on site, not whether you've signed an opt out form.

Opting out benefits the employment businesses, not the contractors. Why recruiters should be scared of contractors going direct is beyond me. If I form a good relationship with an employment business who has sourced me for roles or is doing their best for me, then I'm hardly likely to jeapordise any future relationship with them by stabbing them in the back and going direct. Also, most large organisations won't accept contractors on a direct basis anyway and even if they did why would I risk not being paid by them? Plus it is unlikely I would be offered more money, and probably less, if I went direct. It's not the case that the agency mark up will be added onto your own fee, otherwise what is in it for the organisation? Nothing.

Someone above said that 'your own organisation the PGC favours contractors opting out' or words to that effect. Rubbish! The PGC are very much in the pocket of employment businesses. That's why I've never been tempted to join them. With affiliates like ATSCO and most of the other big IT agencies, am I really stupid enough to assume they don't exert some influence over PGC policy? No, of course not.

No amount of emotional blackmail dished out by recruiters on this site will persuade me that opting out is a good option for contractors. It's precisely because I view myself as a business in my own right that I opt in. I do not and will never accept that I am a pseudo employee. Opting out simply translates to 'employee without rights or redress when screwed.' Given that the recruitment industry largely exists to assist big name organsations to circumvent the employee rights legislation should they take freelancers on directly then it is clearly in my interest to ensure that these additional risks are mitigated.

The other reason I opt in is largely a matter of principle. I would only ever opt out (in theory) with all the risks involved of not being paid - if I was dealing with a company directly and marketing my services to them. I already do that with some organisations. Yet, it is virutally impossible for contractors in my own field to do business with large organisations directly because they insist on using employment businesses. Therefore, unless I want to starve or live on a meagre income I have no choice but to rely on pimps. If I have no choice then recruiters shouldn't have the choice either of lessening their risks by increasing mine..

The law states that, so let us take advantage of it and stop being such timid arseholes and poodles by sucking up to the recruiter's 'big stick.' There's a ******* great carrot out there for the munching - so why refuse it?

[DodgyAgent]

The case for opting in as opposed to opting out is as plain as daylight, as far as I'm concerned.

I run my own business therefore I want to minimise risk to my business and opting in achieves that more than opting out does. It ensure that recruiters have to ensure my suitability before forwarding me onto clients and that makes it much less likely they will believe clients if they try and shaft us for false claims of underperformance based on 'unsuitability.'

I've heard it said time and again that opting in makes absolutely no difference to your tax position. IR35 compliance relies almost exclusively on actual working conditions on site, not whether you've signed an opt out form.

Opting out benefits the employment businesses, not the contractors. Why recruiters should be scared of contractors going direct is beyond me. If I form a good relationship with an employment business who has sourced me for roles or is doing their best for me, then I'm hardly likely to jeapordise any future relationship with them by stabbing them in the back and going direct. Also, most large organisations won't accept contractors on a direct basis anyway and even if they did why would I risk not being paid by them? Plus it is unlikely I would be offered more money, and probably less, if I went direct. It's not the case that the agency mark up will be added onto your own fee, otherwise what is in it for the organisation? Nothing.

Someone above said that 'your own organisation the PGC favours contractors opting out' or words to that effect. Rubbish! The PGC are very much in the pocket of employment businesses. That's why I've never been tempted to join them. With affiliates like ATSCO and most of the other big IT agencies, am I really stupid enough to assume they don't exert some influence over PGC policy? No, of course not.

No amount of emotional blackmail dished out by recruiters on this site will persuade me that opting out is a good option for contractors. It's precisely because I view myself as a business in my own right that I opt in. I do not and will never accept that I am a pseudo employee. Opting out simply translates to 'employee without rights or redress when screwed.' Given that the recruitment industry largely exists to assist big name organsations to circumvent the employee rights legislation should they take freelancers on directly then it is clearly in my interest to ensure that these additional risks are mitigated.

The other reason I opt in is largely a matter of principle. I would only ever opt out (in theory) with all the risks involved of not being paid - if I was dealing with a company directly and marketing my services to them. I already do that with some organisations. Yet, it is virutally impossible for contractors in my own field to do business with large organisations directly because they insist on using employment businesses. Therefore, unless I want to starve or live on a meagre income I have no choice but to rely on pimps. If I have no choice then recruiters shouldn't have the choice either of lessening their risks by increasing mine..

The law states that, so let us take advantage of it and stop being such timid arseholes and poodles by sucking up to the recruiter's 'big stick.' There's a ******* great carrot out there for the munching - so why refuse it?

I totally agree with your comments with regards to opting in or opting out.
You are still a knob though.
I think you will find that agents and contractors were around a long time before "employee rights" came into the equation of things. I know you wont admit it but agents do act as a means of aggregating and distributing requirements. And we do operate in a highly competitive market. A lot of you are not suited to contacting clients directly just as we are not suited to writing lines of code. Just think of how ridiculous the market would be with 250,000 contractors marketing themselves! the duplications would be such that none of you would have time to actually do any work let alone find it.

The rub of it is whether you like it or not is that we exist because the market deems us useful. And markets are better judges of value than anything else.

[Denny]

The rub of it is whether you like it or not is that we exist because the market deems us useful. And markets are better judges of value than anything else.

Only people can be judges not markets and markets can't deem you useful only people can.

Unfortunately, most of the contractors on here don't deem recruiters to be any more useful or valuable than a serious dose of bird flu and that exists too.

Knob.

[ellisj01]

Guys

I didn't want to start a war of words between contractors and agents. All I was after was some advice on a tricky situation. I had one interview 4 years ago at the end client and I have managed to win contract renewal after contract renewal and I have brought in my team through my agent. I have a fabulous opportunity to join another company as a permanent employee but working at the same client site. I owe the agency nothing as I have generated lots of money from them but I am afraid of the excluson clause as it may hinder my future. I don't want to upset the agent and or the client I am working at.

I do not understand what opt in and opt out means. I have a standard contract, with a replacement and exclusion clause. I receive no pay for hours not worked. Other than the exclusion clause, I have no tie in to the agent and or the client. I think the agent has done well from me over the past 4 years as all they have done is arrange 1 interview 4 years ago and have received renewals every 6 months since. I have brought in another 5 contractors through the agency. I think they would be concerned that there business would be under threaght, hence, my concern at contacting them directly. I may have no option but to go to them and ask to be released and take it from there.

[boredsenseless]

I totally agree with your comments with regards to opting in or opting out.
You are still a knob though.
I think you will find that agents and contractors were around a long time before "employee rights" came into the equation of things. I know you wont admit it but agents do act as a means of aggregating and distributing requirements. And we do operate in a highly competitive market. A lot of you are not suited to contacting clients directly just as we are not suited to writing lines of code. Just think of how ridiculous the market would be with 250,000 contractors marketing themselves! the duplications would be such that none of you would have time to actually do any work let alone find it.

The rub of it is whether you like it or not is that we exist because the market deems us useful. And markets are better judges of value than anything else.

Whilst the other words in Dodgy's answer are useful I'm wondering how hard he had to fight not to just repsond with the words in red.

BTW FWIW IMHO both sides have valid points here it just seems that Dodgy and Denny are destined to be arch-rivals forever